Jason Nigel Gregory v Dennis Beecraft, Eastern Suburbs District Rugby League Footballclub and Harbour Pacific Underwriting Management Pty Limited [1998] ACTSC 230 (5 June 1998)

  
  
  
  

  
   Downlaod RTF

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

   COSTS - claim by defendant
football player against defendant football club
for costs on indemnity basis - arguable issues not determined - principal
action
settled by consent - claim refused.

   Employees Liability Act 1991 (NSW), s.3

   Rogers v. Bugden and Another (unreported, 14 February 1990, Supreme Court
of New South Wales)

  

  

   CANBERRA, 6 February
1998 (hearing), 5 June 1998 (decision)

   #DATE 05:06:1998

   Appearances

   Counsel for the plaintiff: D.A. Hassall

   Solicitors
for the plaintiff: Pamela Coward & Associates

   Counsel for the first defendant: G.J. Lunney

   Solicitors for the first defendant:
Corrs Chambers Westgarth

   Counsel for the second defendant: M. Loftus

   Solicitors for the second defendant: Clayton Utz

 
 Counsel for the third party: --

   Solicitors for the third party: Abbott Tout Harper & Blain

  

  

   Order:

   1. The
secondnamed defendant pay the firstnamed defendant's costs on a
party and party basis.

   2. All parties pay their own costs of
the proceedings before the Court on
6 February 1998 and subsequently.

  

  

   MILES CJ

   1. On 6 February 1998 I gave
judgment in the claim by the second defendant
(Easts) that the third party (Harbour Pacific) is liable to indemnify Easts in
respect
of the damages that Easts is liable to pay to the plaintiff (Mr.
Gregory) in consequence of the injury inflicted on Mr. Gregory by
the first
defendant (Mr. Beecraft). Judgment was given by way of a declaration that
Harbour Pacific is so liable.

   2. There were
at the time of judgment on that issue further and outstanding
issues between various of the parties on which I was asked to adjudicate.
Written submissions were lodged and considered. I had made a decision on these
issues and a draft judgment was prepared. However,
on 20 May 1998 a letter was
received from counsel for Mr. Gregory attaching short minutes of orders signed
on behalf of Mr. Gregory,
Easts and Harbour Pacific.

   3. The short minutes incorporate the declaration that has already been made
and in this respect is
unnecessary.

   4. The short minutes further record the agreement of the parties that the
following orders are to be made by consent.

   (i)Verdict for the plaintiff against the Second Defendant in the sum of
$250,000.

   (ii)The Cross-Claim by the Third Party
against the Second Defendant is
dismissed.

   (iii)The Third Party pay the costs of the Second Defendant in the Third
Party proceedings
and in the Cross Claim.

   (iv) The Second Defendant be indemnified by the Third Party in respect of
any costs which the Court orders
the Second Defendant to pay to the Plaintiff
and/or the First Defendant.

   (v)That no interest is payable to the Plaintiff on the
verdict sum.

   (vi) That if the Third Party does not pay to the Second Defendant or its
nominee, the Plaintiff's costs and/or the
First Defendant's costs, within
twenty-one (21) days after agreement of costs or issue of a certificate of
taxation of costs, the
Third Party shall pay to the Second Defendant or its
nominee, in addition to the plaintiff's costs and/or the First Defendant's
costs
as agreed or taxed, interest at the rate of interest applicable to a
judgment of the Supreme Court of the Australian Capital Territory,
calculated
from and including 1 July 1997 up to and including the date of payment in
full of the Plaintiff's costs and/or First
Defendant's costs as agreed or
taxed.

   5. The short minutes note that the plaintiff acknowledges receipt of the
sum of $250,000
from the third party in full satisfaction of the declaration
and Order 1 set out in the minutes.

   6. I understand that agreement
is likely to be reached on the question of
costs as between the plaintiff and the second defendant and I defer further
consideration
of that issue.

   7. The remaining matter is the claim by Mr. Beecraft that his costs should
be paid by Easts on an indemnity basis.
Easts is willing to submit to an order
for costs, but on the usual party/party basis. According to the submission on
behalf of Mr.
Beecraft, a notice claiming contribution or indemnity dated 9
May 1997 was served on Easts on behalf of Mr. Beecraft prior to hearing.
It
claimed the right to indemnity under the Employees Liability Act 1991 (NSW)
(Employees Liability Act). It was not filed until the date of hearing.

   8. On 2 April 1997 the solicitors for Mr. Beecraft
wrote to the solicitors
for Easts, advising that it was their opinion that Easts was liable to
indemnify Mr. Beecraft for damages
and costs pursuant to s.3 of the Employees
Liability Act. The letter suggested that both Mr. Beecraft and Easts be
represented by the same solicitors (Easts' solicitors). The letter threatened
that if there was no notification of acceptance of the proposal by 4 p.m. on
Friday 4 April 1997, then they (Mr. Beecraft's solicitors)
would hold Easts'
solicitors responsible for ongoing costs on an indemnity basis.

   9. The solicitors for Easts managed to comply
with the time limits set for
notification of their attitude, but, not surprisingly, they declined the
invitation.

   10. The solicitors
for Mr. Beecraft repeated their proposal in a further
letter dated 12 May 1997. Again the invitation was rejected. In a letter
of 14 May 1997 from the solicitors for Easts, information was requested to
show that Mr. Beecraft's tackle was an act done in the
course of his
employment. The request does not appear to have been answered.

   11. I do not see why Mr. Beecraft's costs should
be paid by Easts on an
indemnity basis. No evidence was taken as to the circumstances of the tackle
alleged to constitute an assault
on the part of Mr. Beecraft. It appears to be
accepted by all parties that it was in breach of the rules of the game, but no
formal
admissions were made. In contrast with Rogers v. Bugden and Another
(unreported, 14 February 1990, Supreme Court of New South Wales)
there was no
evidence that it was authorised or encouraged by Easts' trainers or coaches. I
am not convinced that there would not
have been an arguable issue about
whether Mr. Beecraft's actions took him outside the scope of his employment.
Furthermore, I think
that there was an issue as to the extraterritorial
operation of the Employees Liability Act.

   12. From the above it follows that it is appropriate to make the following
further orders:

   (i) The secondnamed defendant
pay the firstnamed defendant's costs on a
party and party basis.

   (ii) All parties pay their own costs of the proceedings before
the Court on
6 February 1998 and subsequently.