Stevedoring Industry Finance Committee v Gibson

[2000] NSWCA 372

CITATION:	STEVEDORING INDUSTRY FINANCE COMMITTEE v GIBSON & ORS [2000] NSWCA 372
FILE NUMBER(S):	CA 40454/98
HEARING DATE(S):	Heard on the papers
JUDGMENT DATE:	20 December 2000
PARTIES :	STEVEDORING INDUSTRY FINANCE COMMITTEE v RONALD J GIBSON & ORS
JUDGMENT OF:	Mason P at 1; Stein JA at 14; Heydon JA at 15

COUNSEL:	Appellant: T Tobin QC/EA Cheeseman 1st Resp: T Hughes QC/D Letcher QC/A McSpedden 2nd Resp: J D Hislop QC/CHoeben SC/D Ferrari 3rd Resp: G J Parker 4th Resp: G Little/ S March
SOLICITORS:	Appellant: Blake Dawson Waldron 1st Resp: Turner Freeman 2nd Resp: McCulloch & Buggy 3rd & 4th Resps: Church & Grace
DECISION:	See par 13.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40454/98
DDT 98/96


MASON P
STEIN JA
HEYDON JA

Wednesday 20 December 2000

STEVEDORING INDUSTRY FINANCE COMMITTEE v
RONALD J GIBSON & ORS
JUDGMENT

1    MASON P: Judgment was delivered on 21 July 2000 and the following orders were made:

1. Subject to 2, SIFC’s appeal dismissed with costs.
2. No order as to the costs of CGU Insurance Ltd and Stevedoring Employers of Australia Ltd (in liq) referable to the issues raised in the former’s notice of contention.

3. Refuse leave to Patrick to file a cross appeal, with costs.
(See [2000] NSWCA 179)

2    When judgment was handed down, the Court was informed that certain unaccepted settlement offers might have a bearing as to costs. In accordance with usual practice, it was directed that the orders then pronounced not be entered until further order. Directions were given for the exchange of written submissions on the costs issue with a view to its determination on the papers. 3    Most of the submissions received by the Court fall outside the expressed intent of these directions in that they urge particular costs orders that are not based upon any unaccepted settlement offer. 4    The first respondent does point to certain unaccepted settlement offers, but these were all made in the course of the trial. I do not think that they have any bearing upon the appeal costs in the particular circumstances. 5    Each respondent seeks payment of the costs ordered on 21 July on the indemnity basis. In essence, they adopt the remarks in the judgments critical of the manner in which the appellant SIFC conducted the appeal, especially after the High Court handed down its decision in Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1. 6 The respondents also submit that they were put to significant additional cost in meeting the plethora of grounds of appeal. Mr Gibson has produced a letter from his solicitors to the appellant’s solicitors urging containment of the scope of the appeal in light of the issues addressed in written submissions. It was pointed out that the written submissions omitted any reference to 14 of the grounds of appeal and there was an implicit invitation to recast the notice of appeal. The brusque and uncompromising response from the appellant’s solicitors in their letter of 10 May 2000 is consistent with the manner in which the case was litigated on that side of the record. 7 In opposing indemnity costs, the appellant points to the fact that SIFC was the statutory successor to the Australian Stevedoring Industry Authority and, as such, had no operational involvement in the day to day activities of the Authority in times past. This submission would have carried greater weight at the trial, had there been a similar issue about indemnity costs there. I do not see how this has any relevance as regards the stance adopted by SIFC in prosecuting the appeal in the way that it did, to the extent that it did, especially despite Crimmins and what that case decided. 8    SIFC was, of course, entitled to dispute the allegations of breach and to appeal against the adverse findings, on legal or factual grounds. This said, it remains my view that the factual issues agitated on the appeal were without merit, many of them obviously so. 9    This is not a case where the Court would contemplate an award of indemnity costs on the basis that the appellant acted for any ulterior or improper purpose. To the extent that the judgment appealed against was an effective test case on the issues of breach, causation and apportionment, then it had and has importance and significance for SIFC and the corporate respondents. In one sense this only emphasises the plight of Mr Gibson, whose claim (comparatively small in monetary terms as regards the respondents) became the vehicle for addressing a much larger conflict affecting the corporate parties. 10    In my view Mr Gibson should get his costs on an indemnity basis having regard to the matters adverted to above. However, I would not alter the basis of the costs order touching the corporate parties. Recognising that SIFC’s approach to the appeal would have increased their costs to some degree, it remains the case that the issues litigated and determined were of broad importance to all of those parties. SIFC is not to be punished for having exercised an appeal as of right. That appeal would have consumed significant costs and occupied considerable Court time even had it not been prolonged unnecessarily in the manners discussed in the principal judgment. 11    In the exercise of my discretion I have also taken into account the fact that indemnity costs were not sought until after the Court delivered its reasons. One can readily understand why the reasons encouraged the present applications. Nevertheless, it is not good practice that these matters should have to be addressed a second time by the Court. In the case of a Calderbank offer or its equivalent under the Rules the situation is different, because it will usually be improper for the Court to be told about such matters until after its judgment has been given. But in the present case the unaccepted Calderbank offers that were made during the trial do not strike me as having any real bearing upon the matter now at hand. 12    This leaves the separate issue of the applications by CGU and SEAL. Each of those respondents was awarded its costs of the appeal against SIFC. What was withheld were the costs referable to the issue raised between them (inappropriately in a notice of contention) concerning the insurer’s duty to indemnify SEAL in certain circumstances. It was unnecessary to address that issue, for the reasons set out at pars [115]-[120] of the main judgment. Since there was therefore no determination by this Court about that issue, it was thought appropriate that no costs be awarded in favour of either party referable to that dispute in this Court. I am unpersuaded that we should change this determination. I did not overlook the possibility of shifting the burden of those costs to SIFC by way of a Sanderson order, but I was and I remain unpersuaded that such an order is called for. 13    Each application, except that of Mr Gibson should therefore be dismissed. Mr Gibson’s costs should be treated as part of his costs of the appeal that are already payable by SIFC. The other respondents should pay SIFC’s costs of the recent applications. 14    STEIN JA: I agree with Mason P. 15    HEYDON JA: I agree with Mason P.

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