Strike v Fiji Resorts Limited (No 2)
[2012] NSWSC 1514
•06 December 2012
Supreme Court
New South Wales
Medium Neutral Citation: Strike v Fiji Resorts Limited & Anor (No 2) [2012] NSWSC 1514 Hearing dates: 6 December 2012 Decision date: 06 December 2012 Jurisdiction: Common Law Before: Beech-Jones J Decision: Orders for judgment amount and costs made.
Catchwords: Quantum of judgment - costs - Bullock or Sanderson order - no question of principle. Cases Cited: - Bullock v London General Omnibus Co [1907] 1 KB 264
- Gould v Vaggelis [1985] HCA 75; 157 CLR 215
- Sanderson v Blyth Theatre Co [1903] 2 KB 533
- Strike v Fiji Resorts Limited & Anor [2012] NSWSC 1271Category: Costs Parties: Gay Roslyn Strike (Plaintiff)
Fiji Resorts Limited (First Defendant)
Yanuca Island Limited (Second Defendant)Representation: Counsel:
M.K. Rollinson (Plaintiff)
G. Foster (Defendants)
Solicitors:
Karam Ramrakha (Plaintiff)
Harish Prasad (Defendant)
File Number(s): 2009/297836
Ex tempore Judgment
On 25 October 2012 I published a judgment in these proceedings: Strike v Fiji Resorts Limited & Anor [2012] NSWSC 1271 ("Strike (No 1)"). I found that the Plaintiff, Mrs Strike, succeeded in an occupiers liability claim against the First Defendant, Fiji Resorts Limited ("Fiji Resorts"), but failed against the Second Defendant, Yanuca Island Limited ("Yanuca").
In the judgment I ordered the parties, inter alia, to file proposed forms of order and further submissions on an issue concerning damages, and on costs together with any calculations necessary to support the verdict sums identified in the proposed orders. The proceedings were adjourned until 15 November 2012 for brief submissions. On the application of the parties, that day was vacated and the matter was listed today.
To their credit, the parties have conferred on the calculation of damages based on my findings and have reached agreement on the appropriate figure.
In light of her sick leave entitlements, Mrs Strike did pursue any claim for economic loss up to the date of the termination of her employment (see Strike (No 1) at [82]). Otherwise, the parties agree that the verdict amount for the Plaintiff as against the First Defendant as at today's date is $193,909.00 comprised as follows:
- general damages, $53,500;
- past economic loss with interest $102,155;
- superannuation $11,237;
- past out-of-pocket expenses by way of chemist bills, $2,602, including interest;
- future out-of-pocket expenses in the form of chemist bills $5,564;
- expenses incurred by the public health system, i.e. Medicare payback, $8,051; and
- allowance for the bringing forward of future knee operation, $10,800.
There will be a judgment in the amount of $193,909.00 in favour of Mrs Strike against Fiji Resorts. It also follows that there will be a judgment for Yanuca against Mrs Strike.
Subject to two matters, there is no dispute that Mrs Strike is entitled to a costs order on the ordinary basis against Fiji Resorts. The first matter is that Mrs Strike says that as part of those costs she is entitled to the costs she incurred in issuing a holding writ in the Supreme Court in Fiji. According to Mrs Strike's solicitor, Fiji has a three-year limitation period. There was a concern in the Plaintiff's camp that there may be some form of jurisdictional challenge to the proceedings in this Court, or perhaps the seeking of a stay on a forum non conveniens basis.
I accept that the filing of a holding writ was a prudent step to take. However, by the time the defence was filed on 17 August 2010, and the matter proceeded thereafter, it would have been clear to Mrs Strike's legal advisors that the defendants were both submitting to the jurisdiction of this Court, and would not be pursuing any stay.
I will allow the costs of the filing of the holding writ up to 1 October 2010, being the date when those matters would have been apparent.
Second, Mrs Strike's seeks her costs of a Notice of Motion filed on 30 November 2010 seeking the production of documents pursuant to various notices to produce. The Notice of Motion was returnable on 7 December 2010 but was dismissed by consent, with costs reserved. Apparently the documents the subject of the notices to produce were agreed to be provided. In the ordinary course I would have expected the outcome of such a motion would be that costs would be costs in the cause. As Mrs Strike has been successful, she is entitled to costs of that motion.
There is a further issue concerning Yanuca's costs. Mrs Strike seeks a "Bullock" or "Sanderson" order in respect of Yanuca's costs (Bullock v London General Omnibus Co [1907] 1 KB 264, Sanderson v Blyth Theatre Co [1903] 2 KB 533). Her solicitor has sworn an affidavit outlining the difficulties he experienced in determining the identity of the owner of the resort at which Mrs Strike slipped. He identified Yanuca as a candidate because that was the name of the island on which the resort was located, and there were other proceedings involving the resort in which Yanuca had been sued.
Although there is a generalised complaint by Mrs Strike's solicitor about a failure by the defendants to identify the true owner of the resort, I was not referred to any correspondence directed to them which they failed to answer. To the contrary, by letter dated 30 March 2010 the defendants' solicitors clearly identified Fiji Resorts as the owner of the resort. That said, subsequently they filed a defence in which neither defendant admitted occupation of the resort.
Before I determine whether or not to make a Bullock or Sanderson order there is, however, an anterior question as to the form of the costs order that should be made in favour of Yanuca. Both Fiji Resorts and Yanuca have the same insurer, and at all times they were represented by the same solicitors and counsel. They filed a joint defence. In Strike (No 1) at [105], I queried whether Yanuca incurred any costs separate to Fiji Resorts. An affidavit from the defendants' solicitors stated:
"While no assessment of costs have been undertaken regarding [Yanuca], the firm would have performed work in respect of that client from time to time."
This statement does not really answer the query I raised in Strike (No 1) at [105]. This case is somewhat different to the usual circumstances in which a Bullock or Sanderson order is sought, in that such applications most often arise in respect of different defendants who are separately defended and have different interests.
From at least a reasonable time after 30 March 2010, when Mrs Strike's solicitor was notified of the identity of the owner of the resort, there is no reason to deprive Yanuca as a separate entity from a costs order for the proceedings. However, it will only receive the benefit of such an order to the extent that it incurred costs separate to those of Fiji Resorts in defending the proceedings. If costs were incurred jointly then no portion of the costs will be recoverable from the Plaintiff. Joint costs will not be able to be apportioned.
Although I have some sympathy for the Plaintiff's solicitor, I will not make a Bullock or Sanderson Order in respect of the costs that will be ordered in favour of Yanuca from that reasonable time after 30 March 2010. In Gould v Vaggelis [1985] HCA 75; 157 CLR 215, Brennan J stated:
"A judicial discretion can be exercised to make a Bullock Order against unsuccessful defendant in an action brought against two or more defendants for substantially the same damages only if the conduct of the unsuccessful defendant in relation to the plaintiff's claim against him showed the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought."
In this case it might be said that the failure of Fiji Resorts to formally admit occupation in its defence warranted the joinder, or at least the continued suit against Yanuca. However, in light of the letter of 30 March 2010, and the subsequent affidavits from Fiji Resorts' employees confirming its control over their stairs in question I do not consider that its conduct could be said to have warranted the retention of Yanuca as a defendant in the proceedings after that time.
Accordingly, the Court orders as follows:
(1) Judgment for the Plaintiff against the First Defendant in the sum of $193,909.
(2) Judgment for the Second Defendant against the Plaintiff.
(3) The First Defendant pay the Plaintiff's costs of the proceedings, such costs to include the costs of the holding writ issued by the Plaintiff in the Supreme Court of Fiji in October 2009 up to and including 1 October 2010, and the costs of the Plaintiff's Notice of Motion filed 30 November 2011.
(4) The Plaintiff pay such costs of the proceedings of the Second Defendant as were incurred after 1 March 2010, and as were incurred separately to the First Defendant's costs of proceedings.
(5) Otherwise there be no order as to costs as between the Plaintiff and Second Defendant.
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I certify that the preceding seventeen paragraphs are a true copy of the reasons for judgment herein of his Honour Justice Beech-Jones.
Date: 7 December, 2012
Associate
Decision last updated: 10 December 2012
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