Vincent Lavery v White Industries, White Industries (ACT) Limited (Formerly Known As Pdc Constructions (ACT) Pty Limited), National Convention Corporation Pty Limited, White Constructions (ACT) Pty Limited, Austwork Pty Limited and Marr Contracting Pt [1995] ACTSC 32 (3 April 1995)

SUPREME COURT OF THE ACT

VINCENT LAVERY v. WHITE INDUSTRIES, WHITE INDUSTRIES (ACT) LIMITED (formerly
known as PDC CONSTRUCTIONS (ACT) PTY. LIMITED), NATIONAL CONVENTION
CORPORATION PTY. LIMITED, WHITE CONSTRUCTIONS (ACT) PTY. LIMITED, AUSTWORK
PTY. LIMITED AND MARR CONTRACTING PTY. LIMITED
No. SC1476 of 1988
Number of pages - 4
Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Costs - Action against multiple defendants - One defendant later admitting liability - Plaintiff's costs of joining other defendants - Included in costs awarded against unsuccessful defendant - Bullock Order distinguished.

Marr (Contracting) v White Constructions (1991) 104 ALR 181

Stepke v NCDC (1978) 21 ACTR 23
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215

HEARING

CANBERRA, 15 December 1994
3:4:1995

Counsel for the Plaintiff: Mr B. Meagher

Instructing Solicitors: Pamela Coward and Associates

Counsel for 5th and 6th Defendants: Mr M. Heath

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:

1. By consent, order the fifth defendant to pay the plaintiff's
costs of and incidental to the action.

2. I direct that those costs include the plaintiff's reasonable costs
of proceeding against the first, second, third, fourth and sixth
defendants.

3. By consent, dismiss the action against the sixth defendant, with
no order as to costs.

DECISION

MASTER A HOGAN This is an application for an order about costs, in an action for personal injury arising out of an industrial accident.

2. The plaintiff was a rigger, who was one of a number of people injured when a tower crane collapsed at the White Industries construction site in Canberra in March 1986. That collapse led to a complex series of cases in this Court and in the Supreme Court of New South Wales, as the various contractors involved attempted to sort out their respective liabilities for the losses and injuries caused by the collapse. Some of them are described in the judgment of Beaumont J in Marr (Contracting) v White Constructions (1991) 104 ALR 181.

3. The Writ in this action was issued on 18 November 1988. The fifth defendant ("Austwork") was sued as the employer of the plaintiff. During the course of the action liability was admitted to this plaintiff by Austwork, and the plaintiff discontinued the action against the first, second, third and fourth defendants. On 11 August 1994 I directed the entry of judgment for the plaintiff for $695,496.00, against Austwork, and reserved the question of the disposal of the action so far as it concerned the sixth defendant, and reserved the question of costs.

4. On 15 December 1994 I was informed that there were a number of orders that were consented to. They do not appear to have been formally entered up, so that I formally make them now. They were as follows:

1. That the fifth defendant (Austwork) pay the plaintiff's costs.
2. That the action against the sixth defendant be dismissed, with
no order as to the costs of the action against the sixth
defendant.

5. The order that was sought, and which was opposed, was that the fifth defendant pay to the plaintiff the costs that the plaintiff incurred in bringing the action against the first, second, third, fourth and sixth defendants.

6. It was not submitted that Austwork should also indemnify the plaintiff against any costs that he might be obliged to pay to the other defendants, as a result of his discontinuing the action against them.

7. An order of the Court would be necessary if the plaintiff did seek such an indemnity, known as a Bullock order. In order to obtain such an order it must be shown that "the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant." (See per Blackburn CJ in Stepke v NCDC (1978) 21 ACTR 23 at 30-31, quoted with approval by Gibbs CJ in Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215 at 230.) However, all that is necessary in this case is that the plaintiff acted reasonably.

8. Before commencing the action, the plaintiff's solicitors made enquiries about the identity of the occupiers of the construction site, the head building contractor, and the owner of the crane. Solicitors for the leaseholders of the land informed them that their client, the third defendant, was the leaseholder, their client and the second defendant were the occupiers of the construction site, the first defendant was the head building contractor, and the fourth defendant was the owner of the crane.

9. The plaintiff's solicitors thought themselves in possession of sufficient evidence to join as defendants the second, fifth and sixth defendants.

10. When the litigation referred to in Marr (Contracting) v White (supra) finally came before the Supreme Court of the ACT, Higgins J ordered that the fourth defendant in this case receive against the sixth defendant 90% of the sum that the fourth defendant was liable to pay to the plaintiff in that action, Mr Betts, who was employed by the fourth defendant.

11. In February 1989, in the Supreme Court of New South Wales, Yeldham J held that it was the fourth defendant in this action (the second plaintiff in those proceedings) which had contracted with the sixth defendant to dismantle and relocate the crane. The first defendant in this action was a co-plaintiff in the proceedings before Yeldham J, and the present fifth defendant a second defendant. His reasons for his decisions about the contract, breach of contract, and the negligence of various parties involved, demonstrate that it could not possibly have been obvious to the plaintiff's advisers that any of the defendants whom they proposed to join in the action should not have been sued.

12. I think that it was obviously reasonable for the plaintiff in this action to have joined in it the second, fourth and sixth defendants.

13. Since breaches of statutory duty were involved, it was also obviously reasonable to join the first defendant, the head contractor, and the third defendant, the occupier of the site where building work was being carried on.

14. Once the action was underway there was considerable correspondence about which of the defendants should remain in the action, and the terms on which it might be discontinued against some of them. In the course of that correspondence further information became available to the plaintiff's advisers about the precise relationship between the defendants in their activities in relation to the building site. Further information no doubt became available in the course of the Betts litigation, before Kelly J in December 1989, the Federal Court in November 1991 and Higgins J in May 1992, and in the course of the litigation before Yeldham J.

15. As a result of that information, and of the fifth defendant's admission of liability, it obviously became unreasonable at some stage for the plaintiff to continue his pursuit of the other defendants.

16. When precisely that stage was reached, and what items of costs it was reasonable or unreasonable for the plaintiff to incur, is a matter for the taxing officer to decide, not for me. But that does not affect the position that when the plaintiff commenced the action it was not unreasonable for him to have joined all of the defendants.

17. The formal orders that I make, therefore, are:

1. By consent, order the fifth defendant to pay the plaintiff's
costs of and incidental to the action.
2. I direct that those costs include the plaintiff's reasonable
costs of proceeding against the first, second, third, fourth
and sixth defendants.
3. By consent, dismiss the action against the sixth defendant,
with no order as to costs.