Ventia Utility Services Pty Ltd (Formerly Known as Thiess Services Limited) v Electricity Networks Corporation T/As Western Power [No 4]
[2025] WASC 132
•5 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: VENTIA UTILITY SERVICES PTY LTD (FORMERLY KNOWN AS THIESS SERVICES LIMITED) -v- ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER [No 4] [2025] WASC 132
CORAM: GETHING J
HEARD: 10 & 11 APRIL 2025
DELIVERED : 5 MAY 2025
FILE NO/S: CIV 1195 of 2023
BETWEEN: VENTIA UTILITY SERVICES PTY LTD (FORMERLY KNOWN AS THIESS SERVICES LIMITED)
Plaintiff
AND
ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER
First Defendant
NOREEN MERLE CAMPBELL
Second Defendant
Catchwords:
Practice and procedure - Costs - Three concurrent wrongdoers with distinct proportionate liabilities for bushfire victims' property damage but jointly and severally liable for the victims' legal costs - Contribution as between them - Whether an order for costs can be made in different proceedings from that in which the costs were incurred - Whether an order apportioning costs between defendants can be made pursuant to Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 7 where damages are apportioned pursuant to Civil Liability Act 2002 (WA) Part 1F
Legislation:
Civil Liability Act 2002 (WA) Part 1F
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act (WA) s 7
Rules of the Supreme Court 1971 (WA) O 66 r 2(e)
Supreme Court of Western Australia Act 1935 (WA) s 37
Result:
Declaration made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr S C M Wong |
| First Defendant | : | Mr M J Sims SC and Mr S P Tomasich |
| Second Defendant | : | Mr J C Giles SC and Ms C J Horwood |
Solicitors:
| Plaintiff | : | Wotton + Kearney |
| First Defendant | : | DLA Piper Australia |
| Second Defendant | : | Minter Ellison |
Case(s) referred to in decision(s):
Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333
Bitzer Australia Pty Ltd v Japp [2014] FCA 1040
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
City of Swan v Lehman Bros Australia Ltd (No 3) [2009] FCA 1190
Conservation Council of Western Australia (Inc) v Hon Stephen Dawson MLC [2018] WASC 34 (S)
Electricity Networks Corporation t/as Western Power v Herridge Parties [2022] HCA 37; (2022) 276 CLR 271
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2] [2013] WASC 301
Grace v Grace [No 9] [2014] NSWSC 1239
Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111
Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 (S2)
Herridge v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94
Herridge v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94 (S) [112]
James Hardie & Co Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679
Kidd v The State of Western Australia [2015] WASC 62 (S)
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S)
McGlinn v Joondalup Hospital Pty Ltd [2013] WADC 105
Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263 (S2)
Mohammadi v Bethune [2018] WASCA 98
Northern Territory v Sangare (2019) 265 CLR 164 170
Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271 (S2)
Oshlack v Richmond River Council (1998) 193 CLR 72
Pileggi v Swan Portland Cement Ltd (Unreported, Full Court, Supreme Court, Library No 960248, 22 April 1996)
Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 24) [2020] NSWSC 1498
Stambulich v Ekamper [2007] WASCA 71
Stambulich v Ekamper [2008] WASCA 189
Stewart v Biodiesel Producers Ltd [2009] WASC 145
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
Tjiong v Tjiong [No 2] [2018] NSWSC 1981
Ventia Utility Services Pty Ltd v Electricity Networks Corporation t/as Western Power [2023] WASC 381
Ventia Utility Services Pty Ltd v Electricity Networks Corporation t/as Western Power [No 2] [2024] WASC 4
Ventia Utility Services Pty Ltd v Electricity Networks Corporation t/as Western Power [No 3] [2024] WASC 179
Waite v Hennah [2021] WASCA 69
GETHING J:
Introduction
This decision is the latest, and hopefully last, decision arising out of what has become known as the Parkerville bushfire in January 2014 (Parkerville Bushfire). The fire started when a jarrah pole supporting an electrical cable fell to the ground causing electrical arcing and igniting vegetation.
There were three defendants to the various actions commenced. The pole was owned by, and on the property of, a Mrs Campbell. The electrical cable attached to the jarrah pole was used by Electricity Networks Corporation trading as Western Power (Western Power) to distribute electricity from its network to Mrs Campbell's property. Western Power had engaged Ventia Utility Services Pty Ltd (formerly known as Thiess Services Limited) (Ventia) to undertake works in the vicinity of the power pole in July 2013.
A number of the actions were tried before Le Miere J (which I will refer to in more detail later in these reasons). In summary terms, his Honour found that Western Power was not liable, and apportioned liability 70% to Ventia and 30% to Mrs Campbell (Primary Orders).[1] His Honour further ordered Ventia and Mrs Campbell to jointly and severally pay 80% of the plaintiffs' costs.[2] His Honour expressly declined to make a costs order apportioning liability for the plaintiffs' costs on the basis of fault (Primary Costs Orders).[3]
[1] Herridge v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94 [558] (Le Miere J (Herridge Liability).
[2] Herridge v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94 (S) [112] (Herridge Costs).
[3] Herridge Costs [53].
The Primary Orders were appealed, though not the Primary Costs Orders. The Court of Appeal allowed the appeal in part, re‑apportioning liability as being 50% to Western Power, 35% to Ventia, and 15% to Mrs Campbell.[4] At a hearing on 2 July 2021, the Court of Appeal ordered that the defendants jointly and severally pay the plaintiffs' trial costs up to 20 September 2019 (Court of Appeal's Costs Order).[5]
[4] Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 [356] (Judgment of the Court) (Herridge CA).
[5] Referred to at Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 (S) [4] (Judgment of the Court) (Herridge CA S1).
Prior to the Court of Appeal's decision, Ventia had made payments to the plaintiffs in accordance with the Primary Orders (Payments). After the Court of Appeal's decision, Ventia sought restitution orders in respect of the Payments from the Court of Appeal. The Court of Appeal dismissed the application, but did not preclude Ventia from bringing new proceedings in the general division to seek such orders.[6] Following the Court of Appeal's decision, Western Power made a number of payments to Ventia. Mrs Campbell did not make any payments.
[6] Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 (S2) [31] (Judgment of the court) (Herridge CA S2).
Western Power appealed to the High Court but was unsuccessful.[7]
[7] Electricity Networks Corporation t/as Western Power v Herridge Parties [2022] HCA 37; (2022) 276 CLR 271, 298 (Western Power HC).
On 23 February 2023, Ventia commenced the current proceedings against Western Power and Mrs Campbell seeking orders that each pay it certain further amounts.
The parties identified a number of preliminary questions which, they told Justice Archer, if determined would remove obstacles to settlement. Justice Archer agreed.[8] Her Honour subsequently heard argument and delivered detailed reasons on three preliminary questions which I will return to later in these reasons.[9] Notwithstanding the benefit of these decisions, the parties have not been able to resolve all their differences.
[8] See generally: Ventia Utility Services Pty Ltd v Electricity Networks Corporation t/as Western Power [2023] WASC 381 (Ventia No 1).
[9] Ventia Utility Services Pty Ltd v Electricity Networks Corporation t/as Western Power [No 2] [2024] WASC 4 (Ventia No 2); Ventia Utility Services Pty Ltd v Electricity Networks Corporation t/as Western Power [No 3] [2024] WASC 179 (Ventia No 3).
Justice Archer also ordered that, subject to further order, the determination of the quantum of any contribution payable by Western Power to Ventia in accordance with the judgment of the Court will be referred to a registrar pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 35.
The balance of the action proceeded to trial before me on 10 and 11 April 2025. No witness gave evidence at the hearing nor were any affidavits read. Rather, the parties relied, by consent, on a:
(a)Statement of Agreed Issues filed 20 December 2024 (MFI 1);
(b)Statement of Agreed Facts filed 6 January 2025 (Exhibit 1);
(c)Trial Bundle filed 18 March 2025 (Exhibit 2);[10]
(d)Bundle of materials relating to the hearing on 2 July 2021 (Exhibit 3); and
(e)Bundle of materials relating to the hearing for the Herridge CA S2 decision (Exhibit 4).
[10] Which will be referred to as 'TB page ## '.
At the hearing on 10 April 2025, counsel for Ventia informed the court that it was not necessary for the court to determine issues 4(b), 5, 6, 9 and 10 of the Statement of Agreed Issues.[11] I determined that issues 1, 2, 11 and 12 concerning factual and legal issues relating to payments made be held over for determination until the remaining legal issues had been determined.
[11] Transcript 10.04.2025, page 287.
Each party filed detailed submissions.
In summary terms, the remaining legal issue before me is whether the liability of Ventia, Western Power and Mrs Campbell to pay the costs of the plaintiffs should be:
(a)equal (as Western Power asserts); or
(b)in the same proportions as liability (as Ventia and Mrs Campbell assert).
For the reasons which follow, the liability of Ventia, Western Power and Mrs Campbell to pay the costs of the plaintiffs is equal and a declaration should be made to that effect.
Agreed facts
The facts in this part are from the Statement of Agreed Facts. For the purposes of the trial, I find the facts in this part are proven on the balance of probabilities. I have repeated some of what I have summarised in the introduction to provide the full chronology of events.
First instance actions
As mentioned, the parties claiming loss and damage resulting from the Parkerville Bushfire commenced proceedings in this court against Mrs Campbell, Western Power and Ventia.[12]
[12] The Statement of Agreed Facts defines this entity as 'Thiess' not 'Ventia' as it is now known. However, consistent with the approach adopted by Archer J, I will use 'Ventia'.
The plaintiffs in the proceedings were:
(a)Daniel Herridge and the plaintiffs listed in schedule 1 to the Further Amended Writ of Summons (CIV 2259 of 2015) (Herridge Proceedings);
(b)Karen Patricia Adams and the plaintiffs listed in the schedule to the Writ of Summons (CIV 1239 of 2016) (Karen Adams Proceedings);
(c)Anthony Adams and the plaintiffs listed in schedule 1 to the Writ of Summons (CIV 1445 of 2016) (Anthony Adams Proceedings);
(d)Jodis Powell and the plaintiffs listed in schedule 1 to the Writ of Summons (CIV 1841 of 2016) (Powell Proceedings);
(e)Wayne Frederick Pontague and the plaintiffs listed in schedule 1 to the Writ of Summons (CIV 3168 of 2019) (Pontague Proceedings); and
(f)Bradley John Krepp and the plaintiffs listed in schedule 1 to the Writ of Summons (CIV 3149 of 2019) (Krepp Proceedings).
On 8 May 2018, Ventia filed a notice of contribution against Western Power (Ventia's Notice of Contribution) in each of the Herridge Proceedings, Karen Adams Proceedings, Anthony Adams Proceedings and Powell Proceedings (collectively, the Actions) under Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (Contribution Act) s7(1)(c).[13]
[13] TB pages 5 - 11.
In July and August 2018, Justice Le Miere tried the questions of the defendants' liability for the failure and collapse of the jarrah pole, and the subsequent fire and damage, and the individual loss claims of the nominated lead plaintiffs, Mr and Mrs Elwood, in the Actions (which were heard together).
On 20 September 2019, Justice Le Miere relevantly made the following orders in the Actions:
(a)there be judgment for the lead plaintiffs, Mr G Elwood and Mrs S Elwood, against Ventia in the amount of $542,313.25, together with interest of $165,048.36;
(b)there be judgment for the lead plaintiffs, Mr G Elwood and Mrs S Elwood, against Mrs Campbell in the amount of $232,419.97, together with interest of $70,735.01;
(c)Ventia pay the non-lead plaintiffs 70% of the actionable damages suffered by them as a result of the Parkerville Bushfire;
(d)Mrs Campbell pay the non-lead plaintiffs 30% of the actionable damages suffered by them as a result of the Parkerville Bushfire;
(e)the damages of the non-lead plaintiffs be assessed;
(f)Ventia and Mrs Campbell jointly and severally pay 80% of the plaintiffs' costs of the Actions to 20 September 2019;
(g)the plaintiffs' claims against Western Power be dismissed; and
(h)Ventia's claim against Western Power for contribution under the Contribution Act be dismissed.
On 22 October 2019, Justice Le Miere made orders:
(a)requiring the plaintiffs in the Actions other than the Herridge Proceedings to file and serve any amended particulars of damages, and supporting documentation, on Ventia and Mrs Campbell and otherwise confirm that the particulars of damage and supporting documentation originally provided to the defendants are still relied upon; and
(b)requiring Ventia and Mrs Campbell to file and serve schedules identifying what items of losses are disputed, the basis on which any sums are disputed, and the amounts of loss conceded.
On 30 April 2020, Justice Le Miere made orders for the assessment of the non-lead plaintiffs' damages in the Herridge Proceedings requiring:
(a)the Herridge plaintiffs to nominate:
(i)a first tranche of not more than 10 plaintiffs, whose claims for damages were each to be separately tried commencing in August 2020; and
(ii)a second tranche of not more than 20 plaintiffs, whose claims for damages were each to be separately tried commencing in November 2020;
(b)the parties to file and serve a list of expert reports upon which they propose to rely at the trial of the damages claims of each nominated plaintiff; and
(c)the experts to attend a conclave conducted by the Principal Registrar and to produce a joint expert report.
On 15 June 2020, Justice Le Miere made orders for the assessment of the non-lead plaintiffs' damages in the Herridge Proceedings requiring:
(a)the Herridge plaintiffs to nominate a third tranche of plaintiffs, whose claims for damages were each to be separately tried commencing in February 2021;
(b)the parties to file and serve a list of expert reports upon which they propose to rely at the trial of the damages claims of each nominated plaintiff; and
(c)the parties to the November 2020 and February 2021 trials to provide general discovery on oath.
Ventia (Thiess) Settlements
Between August 2020 and April 2021, Ventia settled (as between Ventia and the relevant plaintiff(s)):
(a)the damages claims of the non-lead plaintiffs, and the costs claims of the lead and non-lead plaintiffs, in the Herridge Proceedings, at judicial mediation before the Honourable Justice Martin and the terms of settlement were recorded in a written agreement dated 30 November 2020, to which neither Western Power nor Mrs Campbell were a party;
(b)the damages and costs claims of the plaintiffs in the Karen Adams Proceedings and the Powell Proceedings at judicial mediation before Registrar Whitby and the terms of each settlement were recorded in a written agreement dated 20 August 2020, to which neither Western Power nor Mr Campbell were a party;
(c)the damages and costs claims of the plaintiffs in the Anthony Adams Proceedings and the Pontague Proceedings by negotiation and the terms of each settlement were recorded in a written agreement dated 3 September 2020 and 13 April 2021, to which neither Western Power nor Mrs Campbell were a party; and
(d)the damages and costs claims of the plaintiffs in the Krepp Proceedings following a Calderbank offer (to which neither Western Power nor Mrs Campbell were a party) by letter dated 10 September 2020, and acceptance of the offer by letter dated 7 October 2020.
Court of Appeal
The plaintiffs in the Actions and Mrs Campbell appealed the first instance judgments of Justice Le Miere.
On 2 July 2021, the Court of Appeal allowed the appeals in part and varied some of the orders made by Justice Le Miere on 20 September 2019 by relevantly making orders to the following effect:[14]
(a)there be judgment for Mr G Elwood and Mrs S Elwood against Western Power in the amount of $387,366.61, together with interest of $117,891.69;
(b)there be judgment for Mr G Elwood and Mrs S Elwood against Ventia in the amount of $271,156.63, together with interest of $82,524.18;
(c)there be judgment for Mr G Elwood and Mrs S Elwood against Mrs Campbell in the amount of $116,209.98, together with interest of $35,367.51;
(d)Western Power pay the non-lead plaintiffs 50% of the actionable damages suffered by them as a result of the Parkerville Bushfire;
(e)Ventia pay the non-lead plaintiffs 35% of the actionable damages suffered by them as a result of the Parkerville Bushfire;
(f)Mrs Campbell pay the non-lead plaintiffs 15% of the actionable damages suffered by them as a result of the Parkerville Bushfire;
(g)Western Power, Ventia and Mrs Campbell do jointly and severally pay the plaintiffs' costs of the Actions to 20 September 2019; and
(h)the parties have liberty to apply in relation to any restitutionary orders in respect of amounts paid under orders of the primary court which have been set aside by the Court of Appeal's orders.
[14] In CACV 114 of 2019; CACV 122 of 2019; CACV 125 of 2019; CACV 128 of 2019.
Western Power appealed the judgment of the Court of Appeal to the High Court.
Following the Court of Appeal's decision, Western Power made general payments to Ventia without prejudice to their detailed attribution as identified in Schedule A to the Amended Statement of Claim relevantly on the following basis:
(a)subject to the Court of Appeal's orders remaining undisturbed on appeal, Western Power accepted that once the various plaintiff groups' party-party trial costs and damages assessment costs have been assessed or agreed (by all parties), as between the three defendants it will be liable to pay or contribute one third of those costs; and
(b)the general payments have been made by Western Power, subject to a full reservation of the parties' appeal rights, in respect of the amounts Western Power has agreed to reimburse for damages and interest and those which it will in due course be liable to contribute in respect of the plaintiffs' costs so as to stop the further accrual of interest on those amounts.
On 22 September 2021, Ventia filed an application in CACV 114 of 2019 seeking an order that Western Power pay Ventia 50%, and Mrs Campbell pay Ventia 15% of the costs which Ventia claimed to have paid to the plaintiffs under the settlement agreements in respect of the costs of the primary proceedings to 20 September 2019 and the subsequent assessments of damages.
On 18 February 2022, the Court of Appeal in CACV 114 of 2019 dismissed Ventia's application without precluding Ventia from bringing new proceedings in the General Division to seek orders for restitution or contribution if it could establish a right to those payments.[15]
High Court
[15] Herridge CA S2.
By special leave granted on 17 March 2022, Western Power appealed the judgments of the Court of Appeal to the High Court.
On 7 December 2022, the High Court dismissed Western Power's appeals.[16]
Payments by Western Power
[16] Western Power HC.
Following the Court of Appeal's decision, Western Power made the following payments:
(a)$1,072,906.54 paid to Ventia (on a without prejudice basis as to all arguments concerning restitution between the parties) no later than 28 October 2021 in partial reimbursement of Western Power's proportion of the plaintiffs' party-party trial costs, previously paid by Ventia;
(b)$1,390,502.06 paid to Ventia (on a without prejudice basis as to all arguments concerning restitution between the parties) no later than 28 October 2021 as reimbursement of Western Power's proportion of the plaintiffs' party-party damages assessment costs, previously paid by Ventia;
(c)$480,850.94 paid to Ventia (on a without prejudice basis as to all arguments concerning restitution between the parties) on 16 November 2021 in further partial reimbursement of Western Power's proportion of the plaintiffs' party-party trial costs, previously paid by Ventia;
(d)$206,721.47 paid to the plaintiffs in the Anthony Adams Proceedings on 29 November 2021 in respect of their party‑party trial costs and disbursements;
(e)$207,005.50 paid to the plaintiffs in the Karen Adams Proceedings on 4 February 2022 in respect of their party-party trial costs;
(f)$414,011.00 paid to the plaintiffs in the Powell Proceedings on 4 February 2022 in respect of their party-party trial costs; and
(g)$1,846,400.05 paid to the plaintiffs in the Herridge Proceedings being $1,541,552.72 in respect of their party-party trial costs plus interest of $304,847.11 (the payment was initially made by cheque dated 9 February 2023 (which was subsequently cancelled on 8 September 2023) and then by EFT on 11 September 2023).
I was informed from the bar table that the practical effect of the payments made by Western Power is that it has more or less paid a third of the taxed or agreed costs of the various plaintiff groups.
This Action
In the action, Ventia initially sought five amounts from Western Power:[17]
(a)interest at 6% per annum on half the full amounts of the damages paid to the plaintiffs from the date each amount was paid to the plaintiffs in the Action (WP's Unpaid Interest);
(b)the amount of $3,982,481 being the amount required to increase Western Power's contribution from one-third to 50% of 80% of plaintiffs' costs of the Actions to 20 September 2019, calculated as at 1 January 2023 (WP's Unpaid Liability Costs);
(c)the amount of $745,079.94 being the amount required to increase Western Power's contribution from one-third to 50% of the costs recoverable by the non-lead plaintiffs in the Actions for the assessment of damages, calculated as at 1 January 2023 (WP's Unpaid Damages Assessment Costs);
(d)the amount of $67,500.00 being 50% of the sum of $135,000.00 paid by Ventia to the Krepp plaintiffs relating to the liability to pay costs recoverable by the Krepp Plaintiffs in the Krepp Proceedings (WP's Unpaid Krepp Proceedings Costs); and
(e)the amount of $289,136.97 being 50% of the payments by Ventia to the experts incurred in defending and settling the assessment of damages of the non-lead Plaintiffs in the Actions and resolution of the Krepp and Pontague Proceedings (WP's Unpaid Expert Costs)
(together the Western Power Unpaid Amounts).
[17] Amended Statement of Claim, filed 9 July 2024.
Ventia claimed that it was entitled to WP's Unpaid Interest to complete restitution by having the money it paid returned with interest from the date each payment was made.
Ventia claimed the remaining amounts on three bases:
(a)the doctrine of equitable contribution or, further and alternatively;
(b)RSC O 66 r 2(e) or, further and alternatively;
(c)pursuant to Contribution Act 7(1)(c).
On 19 July 2023, Ventia and Mrs Campbell resolved all issues in dispute between them in the current proceedings except for the issues the subject of this decision. Consistent with this position, on 18 June 2024 Mrs Campbell commenced a counterclaim seeking:
(a)a declaration that any liability Mrs Campbell may have to contribute to the plaintiffs' costs of the Actions is limited to 15% of those costs which are paid to the plaintiffs, pursuant to Contribution Act s 7(2); and
(b)a declaration that any liability Mrs Campbell may have to contribute to the plaintiffs' costs of the Actions is limited to 15% of those costs which are paid to the plaintiffs, pursuant to RSC O 66 r 2(e).
Issues determined by Archer J
It is instructive at this point to set out the three questions determined by Justice Archer.
The first question related to WP's Unpaid Interest.[18] The question was whether Ventia was entitled to recoup from Western Power the Payments Ventia made to the property owners in the Parkerville Bushfire litigation. As mentioned, Ventia made the Payments following a first instance determination that it was 70% liable for the property owners' loss. On appeal, this determination was set aside and Ventia was found liable for only 35% of the loss.
[18] Ventia No 2 [23].
In relation to this question:
(a)it was common ground on the pleadings that Western Power paid to Ventia 50% of the sums that had been paid by Ventia in relation to damages; [19]
(b)it was also common ground that Western Power paid to Ventia some of the interest that Ventia had paid, in simple terms being the interest Western Power would have had to pay to the plaintiffs following the Court of Appeal decision, disregarding the impact of any obligation to give restitution to Ventia; and [20]
(c)what was in issue was whether Western Power had, to in addition to paying 50% of each sum Ventia paid by way of damages and interest, to pay interest on each payment, calculated from the date of each payment (being WP's Unpaid Interest).[21]
[19] Ventia No 2 [26].
[20] Ventia No 2 [27].
[21] Ventia No 2 [28].
Her Honour answered the question 'no', observing that if Ventia was correct, Western Power would have had to pay more to Ventia than it would have had to pay the property owners if it had been found liable at first instance.[22] More specifically, her Honour held that the doctrine of recoupment did not entitle Ventia to be paid what it claimed as WP's Unpaid Interest.[23]
[22] Ventia No 2 [5].
[23] Ventia No 2 [56] - [59].
This put an end to Ventia's claim for the WP's Unpaid Interest.
The second question related to Ventia's claim for WP's Unpaid Expert Costs. Ventia claimed 50% of payments it made to its experts in defending and settling the assessment of damages of the non‑lead plaintiffs in the Actions and in resolving the other two proceedings. It was common ground that, if the first question was answered 'no', then the answer to the second question must also be 'no'. Justice Archer so found.[24]
[24] Ventia No 2 [123] - [129].
This put an end to Ventia's claim for the WP's Unpaid Expert Costs.
The third question was directed to a dispute as to what share of the plaintiff's costs should be paid by Western Power. As noted, the dispute was, and still is, whether the three defendants should pay costs in equal shares or in proportion to their liability in relation to property damage. Specifically, the question was: given that the Court of Appeal ordered that the parties' costs liability is joint and several, if equitable contribution is ordered, must the contribution be in equal shares? Her Honour determined that, if equitable contribution were ordered in this case, it could only be in equal shares.[25]
[25] Ventia No 3 [184].
The effect of the answer to the third question is that, with one caveat, Ventia, Western Power and Mrs Campbell are each liable as between themselves for one third of the costs ordered by the Court of Appeal on 2 July 2021. So while each is jointly and severally liable to the plaintiffs to pay the plaintiffs' costs of the Actions to 20 September 2019, as between each other, they are equally liable. The effect of the defendants being jointly and severally liable for costs means that if one defendant should become unable to meet its share of the costs, the other defendants will be liable for costs, rather than the loss falling on the successful party.[26] The issues for determination in this trial do not affect the liability of each defendant to the plaintiffs for costs.
[26] City of Swan v Lehman Bros Australia Ltd (No 3)[2009] FCA 1190 [14 - 16] (Rares J) (City of Swan); Bitzer Australia Pty Ltd v Japp [2014] FCA 1040 [45] (Katzmann J) (Bitzer).
The caveat is whether there is another legal principle which can, and should, be used to adjust the proportions of liability as between the defendants. This is the issue which is before me for determination. Specifically, two bases are identified:
(a)RSC O 66 r 2(e); and
(b)Contribution Act s 7(1)(c).
At the hearing on 10 April 2025 I was informed by counsel for Ventia that the issues relating to WP's Unpaid Damages Assessment Costs and WP's Unpaid Krepp Proceedings Costs had 'either been determined or effectively abandoned', such that I did not need to decide them.[27] So the issues in [48] relate only to WP's Unpaid Liability Costs.
Can, and should, the costs discretion in RSC O 66 r 2(e) be exercised as Ventia contends in this case?
Issues
[27] Transcript 10.04.2025, page 275.
It is instructive to begin by setting out RSC O 66 r 2(e):
In the absence of any special order -
…
(e)if there are several defendants and the plaintiff has a verdict against them, each of them shall be liable to the plaintiff for the entire costs although they defend separately: Provided that the Court may from time to time make an order or orders as between several defendants apportioning the liability as between themselves and the recovery of contribution;
The Statement of Agreed Issues identified the following issues as regards RSC O 66 r 2(e):
3.Is the cost discretion in RSC 66 r 2(e) able to be exercised in this proceeding in respect of the Court of Appeal's order in relation to the Plaintiffs' costs of the Actions to 20 September 2019?
4. Western Power contends that the costs discretion is not able to be exercised in this proceeding and Western Power's defence gives rise to the following additional issues:
(a)On its proper construction, does RSC O 66 r 2(e) empower a judge or the Court to make an order or orders as between several defendants apportioning the liability as between themselves and the recovery of contribution in respect of the costs of an action otherwise than in the action in which those parties are several defendants and in which the costs the subject of the order were incurred?
…
(c)Did the Court of Appeal conclusively and finally determine the issue concerning the Plaintiffs' costs of the Actions to 20 September 2019 when it perfected the orders pleaded in paragraph 14.7 of the FASOC, with the result that the Court has no power to reopen, reconsider or make any further or different order in respect of those costs in this action, or at all?
Previous decisions
In the Herridge Costs, Le Miere J expressly considered RSC O 66 r 2(e):[28]
As a general rule, where a court orders that costs be paid by two unsuccessful defendants, the costs liability is joint and several. Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 2(e) provides that if there are several defendants and the plaintiff has a verdict against them, each of them shall be liable to the plaintiff for the entire costs although they defend separately; provided that the court may from time to time make an order or orders as between several defendants apportioning the liability as between themselves and the recovery of contribution.
In this case there is no, or no sufficient, reason to make an order apportioning the liability for the plaintiffs' costs between Thiess and Mrs Campbell. Their liability will be joint and several.
[28] Herridge Costs [52] - [53].
It was agreed across the bar table that Le Miere J did not consider the issue of whether liability for costs should be apportioned as between Ventia and Mrs Campbell.
As mentioned, the Court of Appeal's Costs Order was that the defendants jointly and severally pay the plaintiffs' trial costs. This was made at a hearing on 2 July 2021 for which there is no published decision. However, the materials relating to this hearing are before this court as Exhibit 3. It is apparent from the transcript of that hearing that after receiving an advance copy of the reasons for decision, the parties were invited to, and did, provide minutes of proposed orders.[29] Ventia sought orders programming trial costs for determination on the papers.[30] Mrs Campbell in her draft minute sought an order that the defendants jointly and severally pay 80% of the plaintiffs' trial costs.[31] Western Power's minute was in the same terms.[32] No party specifically sought orders pursuant to RSC O 66 r 2(e).
[29] Exhibit 3, page 137.
[30] Exhibit 3, pages 10 - 17.
[31] Exhibit 3, pages 4 - 9.
[32] Exhibit 3, pages 18 - 23.
Prior to the hearing, the Court of Appeal had circulated a draft minute setting out the preliminary views of the court.[33] These included an order that the defendants jointly and severally pay, in effect, the plaintiffs' trial costs.[34]
[33] Exhibit 3, page 137.
[34] Exhibit 3, pages 36 - 41.
At the hearing, counsel were invited to make submissions on any of the draft orders they took particular issue with. Counsel for Ventia could have, but did not, seek an order pursuant to RSC O 66 r 2(e) at that point. So could have counsel for Mrs Campbell. In the end, no counsel invited the court to go beyond its preliminary view that the defendants jointly and severally pay the plaintiffs' trial costs and to apportion those costs between the defendants.[35] So the Court of Appeal's Cost Order was made in terms of its preliminary view.[36]
[35] Exhibit 3, pages 137 - 146.
[36] Exhibit 3, page 45.
What was specifically held over for further argument was Western Power's contention that Ventia indemnify it for a proportion of each of the trial costs it was liable to pay the plaintiffs, its own trial costs and its own appeal costs. The indemnity was said to arise pursuant to a deed between Western Power and Ventia pursuant to which Ventia carried out services for Western Power. At a later hearing, the court did not accept Western Power's argument based on the construction of the relevant deed.[37]
[37] See generally: Herridge CA S1.
Ventia then filed a further application in the appeal. This was pursuant to liberty to apply given in paragraph 25 of the orders made on 2 July 2021 being 'in relation to any restitutionary orders in respect of amounts paid under orders of the primary court which have been set aside by these orders'.[38] In summary terms, Ventia sought orders requiring Western Power and Mrs Campbell to pay to it the difference between what it paid the plaintiffs under the various settlement agreements and what it would have had to pay them under the apportionment ruled by the Court of Appeal. Relevantly for present purposes, the Court of Appeal observed:[39]
This court's orders of 2 July 2021 concluded the exercise of its appellate jurisdiction in the appeal subject, relevantly, to the liberty to apply preserved by order 25.
[38] Exhibit 3, page 46, quoted at Herridge CA S2 [20] (judgment of the court).
[39] Herridge CA S2 [25].
The Court of Appeal proceeded to dismiss the application on the ground that it fell outside the scope of the liberty to apply.[40] However, the court went on to observe: [41]
This dismissal does not, in our view, preclude [Ventia] from bringing new proceedings in the General Division to seek orders for restitution or contribution if it can establish a right to those payments.
Even if we had not taken the above view of the scope of the liberty to apply, we would still have dismissed the Application. [Ventia's] claims for reimbursement are disputed by Western Power, which denies that it is under any legal obligation to reimburse [Ventia] for amounts paid under the settlement agreements... It appeared that determination of the Application would require resolution of factual disputes and disputes about the legal basis of any right to payment. Despite [Ventia's] attempts to persuade the court to the contrary, we were not satisfied that there were discrete legal issues which could appropriately be resolved by this court prior to the resolution of factual questions. The most efficient means of resolving the disputed issues appeared to us to be for Thiess to commence fresh proceedings in the General Division, properly pleading the factual and legal basis for the claims it asserts. Senior counsel for [Ventia] was unable to point to any prejudice or forensic disadvantage to [Ventia] in adopting that course…
Therefore, even if we had remaining appellate jurisdiction to deal with the issues raised by the Application, it would be in the interests of justice to dismiss the Application and leave it to [Ventia] to bring new proceedings in the General Division.
And that is what Ventia ultimately did, which is now before me for determination.
Determination - interpretation of SCA s 37(1)
[40] Herridge CA S2 [31].
[41] Herridge CA S2 [31] - [33].
The common law did not provide for costs.[42] Rather, 'costs are a creature of statute'.[43] The statute providing the Supreme Court with the power to award costs is Supreme Court Act 1935 (WA) (SCA) which by s 37(1) relevantly provides:
Subject to the provisions of this Act and to the rules of court and to the express provisions of… any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.
[42] Oshlack v Richmond River Council (1998) 193 CLR 72 [134] (Kirby J).
[43] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 [33] (Kiefel CJ, Bell, Keane and Gordon JJ) [59] (Gageler J); Northern Territory v Sangare (2019) 265 CLR 164 170 [12] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
The task of construing SCA s 37(1) 'begins and ends with the statutory text, [though] throughout the process the text is construed in its context'.[44] So it is necessary to consider the text, context and purpose of SCA s 37(1) and determine the construction that, according to the established rules of interpretation, serves the relevant statutory purpose. In so doing, a construction that would promote the purpose or object underlying SCA s 37(1) is to be preferred to a construction that would not promote that purpose or object.[45]
[44] Mohammadi v Bethune [2018] WASCA 98 [31] (Judgment of the court); Waite v Hennah[2021] WASCA 69 [84] (judgment of the court) (Waite).
[45] Waite [84].
One aspect of the interpretation of SCA s 37(1) did not appear to be contentious. This is that the phrase 'the Court or a judge' has two consequences. The first is that where the relevant costs have been incurred in a proceeding before one judge in the General Division, another judge of the General Division may make orders in relation to those costs in the same proceeding (the same would apply for Court of Appeal judges).[46] The second is that the power to make costs orders is not limited to a judge, and is a power that may be delegated to a Registrar.[47]
[46] See for example: Pileggi v Swan Portland Cement Ltd (Unreported, Full Court, Supreme Court, Library No 960248, 22 April 1996).
[47] For the same point of construction in a different context, see: McGlinn v Joondalup Hospital Pty Ltd [2013] WADC 105 [13] - [14] (Gething PR).
The contentious interpretation issue is whether the court or a judge can only make an order for costs in the proceedings in which those costs were incurred, or whether (relevantly) a judge may make an order relating to the costs of a proceeding in a separate proceeding from that in which the costs were incurred.
Counsel for Ventia and Mrs Campbell contend the latter. Their primary submission is that there is nothing in the words of SCA s 37(1) which limits the costs to being imposed in the proceeding in which they were incurred.
However, in my view, the statutory right of costs is necessarily an adjunct to the proceedings and so must be determined in the proceedings. For example, issues like whether a party is successful, and so ordinarily entitled to its costs, require a close consideration of the circumstances involved in the case, including the conduct of each party and the issues raised by each.[48] This can only sensibly be done by the trial judge.
[48] Strzelecki Holdings Pty Ltd v Jorgensen[2019] WASCA 96 [48] - [52] (Judgment of the court).
Counsel for Ventia and Mrs Campbell drew the court's attention to two rules in RSC O 66 which, they submit, assume that a costs order may be made in proceedings other than that in which they were incurred. The first is the second clause of O 66 r 2(e): '[p]rovided that the Court may from time to time make an order or orders as between several defendants apportioning the liability as between themselves and the recovery of contribution'. The phrase 'from time to time' they say means that, after the initial costs orders were made, in accordance with the first sentence, the power to make a further order as to costs is not exhausted, and may be exercised in terms of the second sentence. It follows that the power may be exercised in fresh proceedings.
I agree up to a point with this interpretation. I do not agree that it follows that the power may be exercised in fresh proceedings. The words 'from time to time' are in effect a limited liberty to apply where an order is made in terms of the first sentence. It may well be that the dispute as to contribution does not arise for some time after an order is made making the defendants jointly and severally liable for the plaintiff's costs. The words 'from time to time' allow the parties to, at least, have the proceedings relisted, ideally before the trial judge, to seek orders in terms of the second clause. So in this case, with one caveat, it would have been open to Ventia and Mrs Campbell to have made an application in the Actions to have a judge of the General Division (Le Miere J having retired) determine whether orders should be made in terms of the second clause of RSC O 66 r 2(e). The caveat is whether the orders of the Court of Appeal preclude this from occurring. I will return to this issue in the next section.
The analysis in the preceding paragraph does, however, make it clear that the second clause of O 66 r 2(e) does not contain any textual indication that the costs of one proceeding may be determined in another proceeding.
The second rule is O 66 r 10 which provides:
(1)Costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings, and any order of the Court for the payment of costs may require the costs to be paid forthwith notwithstanding that the proceedings are not concluded.
(2)In the case of an appeal the costs of the proceedings giving rise to the appeal, as well as the costs of the appeal and of the proceedings connected with it, may be dealt with by the Court hearing the appeal; and where proceedings have been transferred or removed to the Court from any other court or tribunal the costs of the whole proceedings, both before and after the transfer or removal, may (subject to any order of the court or tribunal ordering the transfer or removal) be dealt with by the Court.
(3)Where on an appeal or in proceedings transferred or removed to the Court, the Court makes an order as to the costs of proceedings before another court or tribunal, the Court may -
(a)specify the amount of the costs to be allowed; or
(b) order that the costs be taxed by the taxing officer; or
(c)order that the costs be ascertained by taxation or otherwise in that other court or tribunal.
The power in O 66 r 10(1) cannot be used to impugn or alter a costs order already made,[49] and must be sought within a reasonable time after the conclusion of the proceedings.[50]
[49] Grace v Grace [No 9] [2014] NSWSC 1239 [37] - [38] (Brereton J); Tjiong v Tjiong [No 2] [2018] NSWSC 1981 [124], [129] - [130] (Parker J) (Tjiong).
[50] Tjiong [136].
The submission is made that the phrase 'or after the conclusion of the proceedings' in O 66 r 10(1) means that the court is necessarily not making an order for costs in the proceedings in which the costs were incurred. However, an alternate, and in my view better, interpretation is that this phrase supports the view that costs may only be ordered in the proceedings in which they are incurred. Its effect is that even if the proceedings are concluded by, say, judgment having been entered, the court maintains the power, in those proceedings, to make costs orders. Indeed, if a costs order could be made in another proceeding, there would be no need for this phrase. Likewise, RSC O 66 r 10(2) and (3) would not be necessary if the court could make an order for costs in proceedings other than those in which the costs are incurred.
So, again, there is nothing in the text of RSC O 66 r 10 which indicates that the costs of one proceeding may be determined in another proceeding.
There is nothing in the remainder of RSC O 66 which expressly provides or suggests that the costs of one proceeding can be claimed in separate proceedings or, by implication, requires it. Though if there were, the rule would go beyond the power of the court in SCA s 37(1).
No counsel brought to my attention any authority to the effect that the statutory power to award costs of and incidental to a proceeding could be invoked in separate proceedings to the proceedings in which the costs were said to have been incurred.
The construction I prefer is consistent with the following observations of Martin CJ in Conservation Council of Western Australia (Inc) v Hon Stephen Dawson MLC:[51]
It is in the interests of the efficient utilisation of the limited resources of the court, and also in the interests of reducing the legal costs incurred by the parties, if all issues relating to the costs of proceedings are debated and resolved at the time reasons are published and judgment is entered. Protracted and expensive satellite litigation relating to the costs of proceedings after they have been determined by the court is contrary to the public interest and to the interests of the parties, and will be actively discouraged by the court. The reason why the court provides parties with access to reasons prior to their publication is to enable all issues with respect to costs to be determined at the time of publication.
The construction I prefer is also consistent with fundamental principles about the finality of litigation.[52] In both these ways, the construction I prefer promotes the purpose or object underlying both SCA s 37(1) and the determination of disputes generally in the Supreme Court, conveniently set out in RSC O 1 r 4A and 4B.
[51] Conservation Council of Western Australia (Inc) v Hon Stephen Dawson MLC [2018] WASC 34 (S) [1] (Martin CJ). See also: Kidd v The State of Western Australia [2015] WASC 62 (S) [2] (Reasons of the court).
[52] Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [15] - [16] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ); Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 409 (Malcom CJ).
There will, however, be cases in which a costs order is made in a primary proceeding, and there is a need for that costs order to be the subject of secondary proceedings. It may be that there is a contractual claim for an indemnity, as was considered in Herridge CA S1. Or it may be reliance on the equitable doctrine of contribution, as in the present action. However, the secondary proceedings take the costs order made in the primary proceedings as given, and then consider what, if any, further liability arises. The important point is that the secondary proceedings must be based on a right which exists independently of the power in SCA s 37(1) to make an order for costs. Accordingly, it was quite proper for both Ventia and Mrs Campbell (by counterclaim) to have commenced these proceedings seeking to enforce their rights in equity to contribution in relation to the joint and several costs order.
In my view, SCA s 37(1) only empowers the court or a judge to make an order for the costs of and incidental to a proceeding, in the proceedings in which the costs were incurred, including any appeal in the proceedings.
Determination - Did the Court of Appeal conclusively deal with costs?
Counsel for Western Power made an alternate submission that, even if the court had the power to make an order pursuant to RSC O 66 r 2(e) in these proceedings, it should not do so because the Court of Appeal conclusively dealt with the issue of costs. As I have quoted at [58], the Court of Appeal in Herridge CA S2 made it clear that the orders made on 2 July 2021 'concluded the exercise of its appellate jurisdiction in the appeal subject, relevantly, to the liberty to apply preserved by order 25'.[53]
[53] Herridge CA S2 [25].
Counsel for Western Power submitted that the present case raises the same issue as that considered by the Court of Appeal in Stambulich v Ekamper.[54] In that case, the Full Court of the Supreme Court had made a costs order in an appeal on 20 August 2002. The costs order required the respondents to pay the appellant's cost of the appeal. The initial costs order had been perfected, that is drawn up, signed by the Registrar and sealed pursuant to RSC O 43. In August 2006, the appellants filed an application with the Court of Appeal registry (which court had superseded the Full Court in the interim) seeking indemnity costs or, in the alternative, an order that the cost be taxed without regard to the scale. Templeman J, the only member of the Full Court not having retired, held that, as a single judge, he had no jurisdiction to deal with the matter and referred the application to the Court of Appeal.[55]
[54] Stambulich v Ekamper[2008] WASCA 189 [18] - [22] (Pullin JA, with whom Newnes AJA agreed) (Stambulich).
[55] Stambulich v Ekamper[2007] WASCA 71 [18] (Templeman J).
The specific issue which the Court of Appeal considered was whether, once the proceedings were finalised, the Full Court had the power to reopen the orders and vary or add to them, and whether the Court of Appeal has any jurisdiction to consider the application. Pullin JA (with whom the other member of the court, Newnes AJA agreed) observed:[56]
A failure to address on costs may properly be taken by a court as an indication that no special or unusual costs orders are required… There was no application for a special or unusual costs order and so the Full Court was entitled to take it that no such order was sought. The present application is for an order which would vary the substance of the order for costs by increasing the potential liability of the respondent for costs.
[56] Stambulich [9] (reference omitted).
In terms of the specific issue raised, Pullin JA concluded that the Court of Appeal had no power to reconsider recall a perfected order. His Honour's specific reasoning is apposite for present purposes:[57]
In Burrell v The Queen[2008] HCA 34, the court considered the importance of paying attention to the text of a governing statute and any express or implied powers which determines the point at which a court concludes its consideration of a controversy.
The Supreme Court is a court created by statute, namely the Supreme Court Act 1935 (WA). When the Full Court exercised its appellate jurisdiction, it exercised jurisdiction conferred by s 58 of the Supreme Court Act 1935. There was nothing in s 58, in the rules of court, or elsewhere which conferred any power on the Full Court to reconsider or recall an order which has been drawn up, signed by the registrar and sealed pursuant to O 43. See Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 [123] - [124].
In Burrell, their Honours said at [20]:
Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
In this case the perfecting of the orders made by the Full Court on 30 August 2002 pursuant to O 43 on 27 June 2007, conclusively determined the issue concerning costs.
The appellants do not seek to justify the application on the basis that the order did not truly represent what the court pronounced or intended to pronounce as its order. See Burrell [21]. In the absence of any power to reconsider the orders which had been made by the Full Court, the decision concerning costs has been determined and could not, on the appellants' 2006 application, be reopened by the Full Court.
His Honour went on the make some alternative findings which are not relevant for present purposes.
[57] Stambulich [17] - [21].
Counsel for Western Power invites the court to find that in the Court of Appeal's Costs Order, the Court of Appeal conclusively determined the issue of costs. As in Stambulich, the failure by each of Ventia and Mrs Campbell to seek an order pursuant to RSC O 66 r 2(e) meant that the Court of Appeal was entitled to take it that no such order was sought. Also as in Stambulich, the order sought by Ventia and Mrs Campbell would vary the substance of the order for costs by increasing the potential liability of Western Power for costs. Its liability would be increased from being required to contribute a third to the costs it was jointly and severally liable for (pursuant to the principles of equitable contribution) to 50% (consistent with the liability finding).
The submission of Ventia and Mrs Campbell is that this court would not 'be embarrassed' by now determining the issue of apportionment pursuant to RSC O 66 r 2(e). They are not seeking to replace the order of the Court of Appeal, merely add to it in the very manner contemplated by the second clause of that rule. An order that the defendants are jointly and severally liable for costs simply ensures that if one defendant should become unable to meet its share of the costs, the other defendants will be liable for costs, rather than the loss falling on the successful party (see [47]). It says nothing about apportionment.
I agree with the submission that the present matter is on all fours with Stambulich. It is well established that, with the exception of the slip rule, there is no provision of the SCA or RSC which purports to confer jurisdiction upon the Court of Appeal to set aside, reopen or reconsider its perfected final orders after hearing an appeal at which all parties were present.[58] The slip rule does not apply: in no way can it be said that the variation sought by Ventia and Mrs Campbell corrects a clerical mistake or an error arising from an accidental slip or omission.[59] There is certainly no provision in the SCA or RSC which allows a General Division judge in fresh proceedings to revisit a costs order made by the Court of Appeal.
[58] See also Polo Enterprises Australia Pty Ltd v Shire of Broome[2015] WASCA 201 (S) [9] (reasons of the court); Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232 [24] (McLure P, with whom Martin CJ and Buss JA agreed).
[59] SCA s 33; RSC O 21 r 10. See generally: Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S) [7] - [11] (McLure JA, with whom Buss JA and Murray AJA agreed); Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People[2012] WASC 271 (S2) [10] - [13] (Allanson J).
I reiterate that it was open to both Ventia and Mrs Campbell to seek an order pursuant to RSC O 66 r 2(e) when the Court of Appeal was considering the issue of costs following the appeal. Neither did so in their minutes of proposed orders given to the court, nor in oral submissions on 2 July 2021 ([54], [56]). As noted at [80], this is something that may properly be taken by the court as an indication that no order of this type was required.
In Herridge CA S2 there is no specific reference by the Court of Appeal to the issue of RSC O 66 r 2(e) being the subject of fresh proceedings in the General Division. I have quoted the relevant passages at [59]. RSC O 66 r 2(e) is not mentioned in any of the submissions filed.[60] In oral argument, the only reference to costs was a reference by counsel for Mrs Campbell to an order being made pursuant to SCA s 37(1), but only in the context of such an order being outside the scope of the liberty to apply.[61] The reference to disputed factual issues and pleadings is inconsistent with any suggestion that the Court of Appeal was suggesting that the issue of RSC O 66 r 2(e) be the subject of fresh proceedings. So is the language of 'if it can establish a right to those payments'.
[60] The submissions are contained in exhibit 4.
[61] Exhibit 4, page 104.
In the final analysis, there are two logical alternatives:
(a)the Court of Appeal's Costs Order is conclusive and, if asked, it would not vary it (following Stambulich), meaning it would not be open for a single judge of the General Division to do so; or
(b)the Court of Appeal's Costs Order is not conclusive, perhaps because the second clause in RSC O 66 r 2(e) contains an inherent liberty to apply (see [67]), in which case, like Templeman J in Stambulich at first instance, the issue of whether an order should be made pursuant to that rule should be referred back to the Court of Appeal.
So, in either case, if I had the power to make an order pursuant to RSC O 66 r 2(e) in this case, I would not exercise it.
For completeness sake, I add that I accept that the power in RSC O 66 r 2(e) can be used in proceedings to make an order apportioning liability in unequal shares.[62] The power would be without any utility if only an equal apportionment could be made.
Can, and should, the power in Contribution Act s 7(1)(c) be exercised as Ventia contends in this case?
Introductory matters
[62] See for example: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No 24) [2020] NSWSC 1498 [12] (Beech-Jones J).
The Statement of Agreed Issues identified the following issues as regards Contribution Act s 7(1)(c):
Claims under 1947 Act, s 7(1)(c) - FASOC at [20.1]; 1st Def TFAD at [20(ca-ch)] and [33]; 2ND Def CC at [24]
7. Can each of Ventia, Western Power or Mrs Campbell claim contribution from the others in respect of the Plaintiffs' costs of the Actions to 20 September 2019 pursuant to section 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (1947 Act)?
8. If the answer to issue (7) is yes, have [Ventia's] claims for contribution from Western Power under s 7(1)(c) of the 1947 Act with respect to [Ventia's] liability to the Plaintiffs for the costs merged into the final judgment of the Honourable Justice Le Miere with the result that they have ceased to have any independent existence or is Ventia otherwise estopped from pursuing those claims in this action?
Contribution Act s 7(1)(c) in provides:
7. Rules applicable if there are 2 or more tortfeasors
(1)Subject to Part 1F of the Civil Liability Act 2002, where damage is suffered by any person as the result of a tort -
…
(c)any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise but so that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability for which contribution is sought.
As to how the apportionment is to be made, Contribution Act s 7(2) provides:
In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.
Contribution Act s 7(1)(c) was considered in some detail by Archer J in Ventia No 3. Relevant to the third question, her Honour held that this paragraph does not amend the manner in which contribution could be awarded in equity. Rather it creates a statutory right to contribution, subject to Civil Liability Act 2002 (WA) (CLA) Part 1F.[63] I respectfully agree. Having reached that conclusion, her Honour did not need to consider Contribution Act s 7(1)(c) further in order to answer the third question.
Can each defendant claim a contribution from the others in respect of the plaintiffs' costs of the Actions to 20 September 2019 pursuant to Contribution Act s 7(1)(c) (question 7)?
[63] Ventia No 3 [124].
Given issue 8, I will begin by answering this question in the abstract.
One of the authorities referred to in some detail by Archer J in Ventia No 3 was the decision of the New South Wales Court of Appeal in James Hardie & Co Pty Ltd v Wyong Shire Council.[64] The issue before the Court of Appeal was whether the NSW equivalent legislation to Contribution Act s 7(1)(c) empowered the court to make an order for a party who had been found liable to contribute to damages, to contribute also to costs. The court held that it did.[65]
[64] James Hardie & Co Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679 (James Hardie v Wyong).
[65] James Hardie v Wyong [28] ‑ [29] (Giles JA), [46] (Heydon JA agreeing), [7] (Handley JA).
In Misiani v Welshpool Engineering Pty Ltd Barker J observed to the same effect, citing James Hardie v Wyong:[66]
In any event, to the extent that it may be said the second defendant did not advance or make plain its submission concerning the first costs question, the law and usual practice is clear concerning its entitlements where liability has been apportioned between multiple defendants under s 7(2) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA). Under s 7(1)(c) of that Act, any tortfeasor liable in respect of "damage" recovered by a plaintiff may recover contribution from another tortfeasor who is liable in respect of the same "damage". Under s 7(2), the Court may make such contribution order as it considers to be "just and equitable". In the contribution proceedings, I found that the second defendant should contribute to the plaintiff's damages in the proportion 97:3.
It is well‑understood that "damage" in the context of these contribution provisions is in respect of both damages awarded and costs. The fact that s 7(1)(c) of the Act does not merely refer to "damages", but utilises the expression "in respect of that damage" indicates that the Act is concerned with the consequential liability of a defendant for a plaintiff's award including costs.
The authorities recognise that both textual analysis and sound reason support this outcome: see James Hardie & Coy Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679, especially per Giles JA (with whom Heydon JA agreed) at 685 ‑ 690.
In effect, it is not open to the Court, having apportioned liability in the contribution proceedings in the manner that it has in this case, to do other than make an order that the defendants should respectively contribute to the plaintiff's costs of the action in the same proportion.
[66] Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263 (S2) [9] - [12] (Barker J).
I respectfully agree up to a point, then disagree. It is open to the court in proceedings under the Contribution Act to apportion liability for costs. But the underlying right to costs arises under SCA s 37(1), not from the substantive cause of action, the subject of the action. Nothing in Contribution Act s 7(1)(c) evidences an intention to limit the wide discretion in SCA s 37(1). So while the court could order that the defendants should respectively contribute to the plaintiff's costs of the action in the same proportion as liability, it is not required to. For example, there may be Calderbank offers which impact on the issue of costs. However, I don't need to finally determine this issue in order to resolve the questions in the present case.
I find that pursuant to Contribution Act s 7(1)(c) a tortfeasor may recover a contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, in respect of the costs payable by the first tortfeasor.
However, this conclusion is subject to CLA Part 1F dealing with proportionate liability. Two definitions in CLA s 5AI are central to the analysis:
apportionable claim means -
(a)a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care (but not including any claim arising out of personal injury); or
(b)a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 2010 based on misleading or deceptive conduct;
concurrent wrongdoer, in relation to a claim, means a person who is one of 2 or more persons whose act or omission caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
CLA s 5AK(1) then provides:
(1)In any proceedings involving an apportionable claim --
(a)the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and
(b)the court may give judgment against the defendant for not more than that amount.
CLA s 5AL then deals with contributions:
(1) A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim -
(a)cannot be required to contribute to the damages or contribution recovered from another concurrent wrongdoer in respect of an apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant); and
(b)cannot be required to indemnify any such wrongdoer.
(2) Subsection (1) does not affect an agreement by a defendant to contribute to the damages recoverable from or to indemnify another concurrent wrongdoer in relation to an apportionable claim
Counsel for Ventia and Mrs Campbell submitted that the only claim which is carved out of Contribution Act s7(1) is the apportionable claim, that is, the claim for damages. Specifically, CLA s 5AI only refers to the 'damages' payable for economic loss or damage to property, and does not include costs. The language used is different to that used in Contribution Act s 7(1) the subject of the observations by Barker J in Misiani at [95]. So costs are not carved out, and remain in the sphere of Contribution Act s7(1).
Counsel for Ventia and for Mrs Campbell then argue that, as CLA Part 1F only applies to damages and not costs, it does not preclude them from seeking in this action an order for contribution pursuant to Contribution Act s7(1)(c) in relation to costs, even though liability has been determined pursuant to CLA Part 1F.
The issue of the interaction between CLA Part 1F and Contribtuion Act s 7(1) was considered by Kenneth Martin J in Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2].[67] In that case, the plaintiff sued two defendants for economic loss based on breaches of contract, a common law duty of care, fiduciary duties and statutory obligations. The two defendants issued a third party notice against a Mr Hart, foreshadowing a position at trial that the greater measure of tortious responsibility for the plaintiff's losses, if not all responsibility, should be laid at his 'doorstep'. The third party notice relied on Contribution Act s 7(1). It sought an indemnification for the 'Plaintiff's claim and the costs of the action'.[68] Mr Hart applied to strike out the third party notice on the basis that the opening words of Contribution Act s 7(1) meant that an action could not be brought against him pursuant to that section.
[67] Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2][2013] WASC 301 (Fudlovski).
[68] Fudlovski [16], [21].
It was not in issue that the claim for economic loss by the plaintiffs met the description of an 'apportionable claim' within CLA Part 1F. The defendants sought to argue that, notwithstanding this, they still retained a statutory right of action pursuant to Contribution Act s 7(1). His Honour disagreed, concluding:[69]
But for Western Australia the precatory amendment to s 7 renders it absolutely explicit there has now been a subjugation of s 7(1) to pt 1F of the WA Act, where the apportionable claims provisions of the latter Act has been engaged.
In my view, these considerations dictate a conclusion that Mr Hart's contention that the defendants now hold no valid statutory cause of action against him for contribution or indemnity arising out of s 7 of the Law Reform Act, must be accepted.
Accordingly, his Honour set aside the third party notice. However, his Honour observed that it was open to the defendants to seek to join Mr Hart as an additional defendant.[70]
[69] Fudlovski [37] - [38].
[70] Fudlovski [46] - [51].
Counsel for Western Power relies on this decision and invites the court to determine that as the plaintiffs' claims were 'apportionable claims' within CLA Part 1F, neither Ventia nor Mrs Campbell hold any valid statutory cause of action against it for contribution or indemnity arising out of Contribution Act s 7(1). I agree.
In my view, it was open to the parties to seek, and the Court of Appeal to make, an order apportioning costs along the same lines as liability. The discretion in SCA s 37(1), elaborated in RSC O 66 r 2(e), is wide enough for an order in these terms to have been made. It was also open to the Court of Appeal not to; the fact that the plaintiffs' claim was an apportionable one does not automatically mean that the costs liability had to be apportioned in the same manner as damages. The Court of Appeal's Costs Order must be taken to be a conscious decision, for good reason,[71] to make costs liability joint and several and not apportion them.
[71] City of Swan [14] - [15].
The Court of Appeal could also have made an order that, while the liability as between the plaintiffs and the defendants was joint and several, the liability as between the defendants was in proportion to their liability for damages. Again, this order could have been made pursuant to SCA s 37(1) generally or RSC O 66 r 2(e).
CLA s 5AL is not an impediment to what I regard as the correct interpretation of CLA s 5AK. If the court determines, say, that each of Party A and Party B is 50% liable for the damaged assessed, it could (but was not required to) then make an order that both Party A and Party B area each liable to the plaintiff for 50% of its costs. I add that in making this order instead of an order for joint and several liability, the court would be moving the risk of one defendant not paying its proportion of costs from the other defendant to the plaintiff, consistent with the CLA regime generally.[72] In that scenario, CLA s 5AL would preclude Party A from seeking to recover from Party B any of the costs which it paid. On the other hand, if the court did not apportion costs, no occasion would arise for CLA s 5AL to be invoked.
[72] Fudlovski [34].
Counsel for Mrs Campbell also places weight on the fact that CLA s 5AK contemplates a scenario in which there is an apportionable part of the claim and a non-apportionable part of the claim. It is argued that this points to issue of liability for costs being left to be determined pursuant to the Contribution Act. I disagree. It is neutral. In any event, for a claim with components in both the Contribution Act and the CLA, the powers in SCA s 37(1) and RSC O 66 r 2(e) amply allow for the court to make the appropriate orders.
No counsel was able to draw my attention to any case in which liability for damages was determined, and proportions set, pursuant to CLA Part 1F, and liability for proportions for costs and proportions set pursuant to Contribution Act s 7(1).
In my view, the appropriate regime pursuant to which an order for costs is made is the one in which the liability is determined. That is the substantive effect of the opening words of Contribution Act s7(1). If liability is determined pursuant to Contribution Act s 7(1)(c), then so should costs. If liability is determined pursuant to CLA Part 1F, then so should costs. In either case, SCA s 37(1) generally, and RSC O 66 r 2(e) specifically, readily empower the court to make orders apportioning costs as between the defendants.
In the present case, the plaintiffs' claims were apportionable claims within CLA Part 1F. The Court of Appeal apportioned liability for damages pursuant to the CLA.[73] The opening words of Contribution Act s7(1) - 'Subject to Part 1F of the Civil Liability Act 2002' - preclude it from being used to apportion costs in this case whether in the primary action or in fresh proceedings. The answer to question 7 is no.
If the answer to issue 7 is yes, have Ventia's claims for contribution from Western Power under Contribution Act s 7(1)(c) with respect to Ventia's liability to the Plaintiffs for the costs merged into the final judgment of the Honourable Justice Le Miere with the result that they have ceased to have any independent existence or is Ventia otherwise estopped from pursuing those claims in this action (issue 8)?
[73] Herridge CA [349] - [356].
The alternative argument made by counsel for Western Power is that if Ventia had a claim for contribution from Western Power under Contribution Act s 7(1)(c), then this claim was dismissed by Le Miere J, a finding not disturbed on appeal. The doctrine of res judicata prevents Ventia from, in effect, litigating the issue again in these proceedings. This argument is only made against Ventia. For completeness sake, I will briefly consider this issue.
In Ventia's Notice of Contribution, Ventia sought:[74]
Contribution for any liability that Thiess Services may be found to have to the plaintiffs, Western Power or Mrs Campbell in these proceedings pursuant to section 7(1)(c) of the Law Reform Contributory Negligence and Tortfeasors' Contribution Act 1947 (WA) or at general law.
[74] TB 10.
Le Miere J ultimately made orders in each of the Herridge Proceedings,[75] the Karen Adams Proceedings,[76] the Anthony Adams Proceedings[77] and the Powell Proceedings,[78] dismissing Ventia's Notice of Contribution. As mentioned, whilst these orders were included in the appeal, they were not disturbed.
[75] TB page 225.
[76] TB page 228.
[77] TB page 231.
[78] TB page 234.
The basic principle is expressed by Beech J in Stewart v Biodiesel Producers Ltd:[79]
In this area of the law there are numerous inconsistencies in terminology and taxonomy. However, the basic principle is clear enough. The final decision in a case estops or precludes any party to the litigation from disputing against any other party in later litigation the correctness of the earlier decision, except on appeal. The same claim cannot be raised again between them: Spencer Bower, Turner & Handley, The Doctrine of Res Judicata (3rd ed, 1996) [2], [9]. As Fullagar J said in Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 466, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action between the same parties….
In Spencer Bower, Turner & Handley [3] ‑ [6] it is suggested that the estoppel effect and the merger effect of a judgment should be distinguished. The learned authors state that the doctrine of merger arises only when a claim is successful, because only then has the cause of action merged into the judgment. By contrast, the estoppel effect of the broad principle stated… above applies to preclude a party from raising the same claim again in later litigation whether the claim in the earlier action succeeded or failed. The authors describe this as 'cause of action estoppel'… The merger effect is described as 'merger in judgment', and the estoppel effect as 'res judicata estoppel'. Res judicata estoppel is used to refer both to cause of action estoppel and to issue estoppel.
…
In any case, leaving aside issues of terminology, it is clear that the estoppel effect of the earlier decision, precluding the same claim from being made again in later proceedings between the same parties, applies whether the claim in the first proceedings succeeded or failed…
[79] Stewart v Biodiesel Producers Ltd [2009] WASC 145 [6] - [11] (Beech J) (some references omitted) (Stewart).
Beech J went on to identify the following elements which a party setting up a res judicata estoppel must establish:[80]
(a)the decision was judicial in the relevant sense;
(b)it was in fact pronounced;
(c)the tribunal or court had jurisdiction over the parties and the subject matter;
(d)the decision was final and on the merits;
(e)it determined the same question as that raised in the later litigation; and
(f)the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.
[80] Stewart [12].
His Honour then observed that in 'cases of a plea of res judicata or cause of action estoppel, the primary question will be whether the cause of action in the later proceedings is the same as that which was litigated in the former proceedings'.[81]
[81] Stewart [14].
Counsel for Ventia noted that in dealing with the issues in Stuart Beech J declined to analyse the two claims in question at a high level of generality.[82] Adopting the same approach, counsel invited the court to find that Ventia's Notice of Contribution which was dismissed only in relation to damages, and not to costs. The problem with that approach is that, as set out at [95], the decisions in James Harie v Wyong and Misiani are to the effect that that 'in respect of… damage' in the context of the contribution provisions is in respect of both damages awarded and costs.
[82] Stewart[129].
In my view, Western Power readily satisfies each of the elements in [117]. The issue sought to be raised in these proceedings relates to the same cause of action as that which was litigated in the former proceedings. This is whether Western Power is liable to contribute to any liability that Ventia may be found to have to the plaintiffs, Western Power or Mrs Campbell in the Actions pursuant to Contribution Act s 7(1).
The effect is that even if I were of the view that Ventia could bring an action pursuant to Contribution Act s 7(1) against Western Power in respect of the liability for costs, it has already done so, and cannot do so again.
What final orders are appropriate?
In my view, the appropriate final order is a declaration that each of Ventia, Western Power and Mrs Campbell is liable to each other for a third of any costs order made in favour of the plaintiffs pursuant to the Court of Appeal's Costs Order. This is what Archer J found in the third question, a conclusion which is not impacted by the arguments unsuccessfully mounted by Ventia and Mrs Campbell the subject of this decision. I will hear from the parties as to the precise form of the order.
That leaves the balance of the trial which I have adjourned part heard. My sense from counsel is that if I made a declaration order along the lines contemplated in [122], the remaining monetary issues could be resolved by negotiation. My preliminary view is to adjourn the balance of the action for 8 weeks to allow that to occur. If not, I will make some detailed programming orders to precisely identify the amounts in dispute and the basis of the dispute.
I will also hear from the parties as to costs. It may make more sense to leave the issue of costs until the balance of the action has been resolved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OB
Associate to the Hon Justice Gething
5 MAY 2025
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