Supreme Court of the NT|1988-11-15|Before: Williams J

Gary Mark Lackerstein v Melvin Lawrence Jones, Kenneth Graeme Smith and Northern Territory of Australia (No2) [1988] NTSC 72; 93 FLR 442 (15 November 1988)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Asche C.J.(1) CWDS Costs - Multiple defendants - whether unsuccessful defendants or whether plaintiff should pay successful defendant's costs - "Bullock" order - "Sanderson" order - principles applicable

Police Administration Act 1984 (NT) ss. 162, 163(1),(3),(6) Cases cited: Besterman v British Motor Cab Company Ltd (1914) 3 KB 181 Bullock v London General Omnibus Company and Ors (1907) 1 KB 264 Donald Campbell and Co Ltd v Pollak (1927) AC 732 Hong and Anor v A. and R. Brown Ltd and Anor (1948) 1 KB 515 Jones v McKie and Mersey Docks and Harbour Board Letany v Cooper ; Sanderson v Blyth Theatre Company Steppke v National Capital Development Commission Cases discussed: Altamura v Victorian Railways Commissioners ; Gould and Anor v Vaggelas and Ors Johnson's Tyne Foundry Pty Ltd v Maffra Corporation ; Cases distinguished: Donovan v Cammell Laird and Co and Ors Mulready v J.H. and W. Bell Ltd Neilson v Costalos ; HRNG DARWIN #DATE 15:11:1988 Counsel for the Plaintiff: C. McDonald Solicitor for the Plaintiff: Loftus and Cameron Counsel for First and Second Defendants: J.R. Withnall Solicitor for First and Second Defendants: Withnall and Cavanagh Counsel for Third Defendant: B. Johns Solicitor for Third Defendant: Solicitor for the NT ORDER The Court orders that:

maintain safe means of access and failed to provide any or suitable means by fencing or otherwise to ensure the safety of the plaintiff at his place of work. That cause of action was based on the assumption that the second defendants were the occupiers of a factory and failed because the factory had not yet been completed. The cause of action against the first

defendants was based entirely on a breach of the building regulations, and there it was quite immaterial whether the work was being done on a factory or any other building. A Bullock order is appropriate where a plaintiff is in doubt as to which of two persons is responsible for the act or acts of negligence which caused his injury, the most common instance being, of course, where a third person is injured in a collision between two vehicles and where the accident is, therefore, caused by the negligence of one or the other, or both. It does not appear to us that it is an appropriate order to make where a plaintiff is alleging perfectly independent causes of action against two defendants where the breaches of duty alleged are in no way connected the one with the other." 12. In Donovan v Cammell Laird and Co. and Others (1949) 2 All ER 82 Devlin J. (as he then was) refused to make a "Bullock" order in circumstances where the plaintiff had sustained injury at work and sued the first defendants (his employers) for failing to provide a safe system or place of work. He sued also the second defendants (who were the occupiers of the premises on which he was working) and the third defendants (who were in control of the ship in which he was working). As to both the second and third defendants he alleged breaches of the Shipbuilding Regulations; and as to the second defendant he also alleged breaches of the Factories Act. He succeeded only against the first defendant. On an application for a "Bullock" order His Honour said: " I do not think merely because the plaintiff has acted very reasonably in the light

of the authorities in joining the second and third defendants I can, therefore, say that, since in my judgment, I have taken a different view of the law, the first defendant ought to be made to pay for that. ... I think the true position here is simply that, if my judgment is right, the plaintiff took a wrong view of the regulations, and acting - very properly, of

course - but acting on that wrong view he joined the second and third defendants. It is extremely unfortunate that the plaintiff should have to bear the costs, but that is a misfortune which may fall on any member of the public when the court is concerned with construing obscure regulations. I do not think, in applying the principle which was set out in Hartwell v Grayson Rolle and Clover Docks Co. and Hong v A. and R. Brown, and exercising my discretion in accordance with the judgments in

those cases, I can fairly say it would be reasonable to penalise the first defendants by making them bear the costs of the second and third defendants. I think I would be only yielding to my natural sympathies in acting on the ground that where costs have been unfortunately thrown away owing to the obscurity in public legislation the first defendants should bear the burden." 13. In Neilson v Costalos [1939] SAStRp 6; (1939) SAS R 147 the plaintiff brought an action for negligence against the driver of a motor vehicle and his wife, alleging that the wife was the owner and that the vehicle was driven by the husband as the agent of the wife. He succeeded against the husband but did not establish ownership or agency as against the wife. Richards J. refused a "Bullock" order. At page 149 he refers to that part of the headnote in Besterman v British Motor Cab Co Ltd (1914) 3 KB 181 which states that "it is a question in all cases whether it was a reasonable and proper course for the plaintiff to join both the defendants in the action" and then says:- " Taken literally, that note covers the present case, for it cannot be said that it was not reasonable and proper for the plaintiff to join Mrs Costalos as a defendant; there was very good ground for suspecting that Costalos was acting as his wife's agent when driving the truck. But the Court was dealing with a case in which there were alternative claims, and the test adopted by Vaughan Williams L.J., at p 185, was that stated by Cozens-Hardy L.J. in Bullock's case, adopting what was said by Romer L.J. in Sanderson's case; and he pointed out, at p 187, that what made it reasonable for the plaintiff to join both defendants in the action was that 'there were two people who upon the face of the transaction might, either of them, have been guilty'; and later, in stating the proper course for a plaintiff to adopt, he referred to 'a state of uncertainty as to which of the two is the really guilty one.' There is nothing in the judgment of the other Lords Justices to lead to the conclusion that cases other than such as those to which reference has already been made were in contemplation." 14. I think the first case of Mulready v Bell (supra) can be distinguished from the facts here. The point made by the Court of Appeal was that the causes of action were "entirely independent" and "in no way connected the one with the other". That is plain from the fact that the plaintiff was alleging breaches of the Building Regulations against the one and breaches of the Factories Act, against the other. But it cannot be said of the present case that the causes of action were independent or unconnected. Indeed the situation is to the contrary since the plaintiff could not even reach the third defendant without first proving the torts of the first and second defendants. The road to liability lay along the same route

but a little further along. The case against the third defendant was clearly connected with the case against the first and second defendants. The third defendant itself recognised that by its contribution notice which relied, inter alia, on s. 163(6) of the Police Administration Act which provides that where the Crown pays money by way of damages or costs in respect of a tort committed by a member the Crown may recover contribution in respect of such payment.

The case of Donovan v Cammell Laird and Co. and Ors (supra) is also distinguishable. There Devlin J. proceeded on the basis that the plaintiff "took a wrong view of the regulations" i.e. that he made a mistake in law and that the second and third defendants therefore should not and indeed could not properly have been joined. This was therefore not a case in which the causes of action were dependent or connected, because His Honour's conclusions were that there could not be a cause of action at all against the second and third defendants. The plaintiff could not approach them through any road.
The case of Neilson v Costalos (supra) is to my mind distinguishable on the facts. The husband denied negligence. That was the sum total of his defence. The wife denied the negligence of the husband but raised separate defences denying that the husband was her agent and denying that she was the owner of the vehicle. Richards J. took the view that those separate defences were not in issue between the plaintiff and the husband. Therefore it could not be said that the costs of those defences were incurred in any issue between the plaintiff and the husband. Therefore he refused to make a Bullock order. That was, if I may say so with respect, a little harsh because the husband had apparently registered the vehicles in his wife's name (see p 150) so that it was his own action which one would think made it reasonable and proper for the plaintiff to proceed against husband and wife. However, appreciating the distinction His Honour made, it does not apply to this case where the third defendant had admitted that the first and second defendants were members of the Northern Territory Police Force and s. 163(1) of the Police Administration Act provided that subject to sub-s. (3) the Crown was liable in respect of torts committed by members of the Police Force in the performance or purported performance of their duties. The third defendant in its defence denied vicarious liability and denied the allegation of tort against the first and second defendants. That raised the issue, also raised by the reliance of the first and second defendants on s. 162 of the Act as to whether they were acting in performance of purported performance of their duties and the case against the third defendant became dependent on and connected with the case against the first and second defendants.
However, it would in my view nevertheless have been open to the learned judge in Neilson v Costalos (supra) to make a "Bullock" order and with respect I think he unnecessarily restricted his discretion. His Honour felt that because there were "alternative Claims" (by which I take him to mean claims based on different causes of action rather than claims based on the same cause of action against different defendants) a "Bullock" order was not appropriate.
In Altamura v Victorian Railways Commissioners [1974] VicRp 4; (1974) VR 33 the plaintiff claimed damages for personal injuries against three defendants. The defendants were the Victorian Railways Commissioners as occupiers of the property in which he was working at the time of the accident, a defendant D.A. Constructions Pty Ltd which was the head contractor for the Victorian Railways Commissioners who were carrying out the work and the plaintiff's employer who was a sub-contractor with D.A. Constructions.

it fair to impose some liability on it for the costs of the successful defendant." Brennan J. adopted a somewhat stricter test at p 64 namely that, "A judicial discretion can be exercised to make a Bullock order against an unsuccessful defendant only if the conduct of the unsuccessful defendant in relation to the plaintiff's claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought." 23. In Johnston's Tyne Foundry v Maffra Corporation (1948) 77 CLR 422 at 572 Williams J. adopted the test in Hong and Anor v A. and R. Brown Ltd and Anor (1948) 1 KB 515 which he stated as being that it was a matter of discretion whether such an order should be made and the fact that it was reasonable for the plaintiff to join the successful defendant when the action started does not entitle the plaintiff to such an order if in the opinion of the judge it is not reasonable that the unsuccessful defendant should be penalized by having to pay two sets of costs. 24. From those cases therefore the following principles seem to be established before a judge can make a "Bullock" or "Sanderson" order. 1. It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant. 2. The causes of action against two or more defendants need not be the same but they must be substantially connected or dependent the one on the other. 3. While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion. 4. Finally, in considering whether to make such an order, the Court should, in the

exercise of its discretion balance overall two considerations of policy:- the first, that an unnecessary multiplicity of actions should not be forced on litigants, so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; the second, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful. 25. In this case the first and second defendants admitted in the pleadings that they were servants of the Crown. They denied all allegations relating to the torts alleged. They took a defence under s. 162 of the Police Administration Act which, had it been successful, would have protected them as servants of the Crown for acts done in pursuance of the Statute and thereby they relied on their office as members of the Police Force and put in issue that their acts were done as servants of the Crown. They served notices of contribution against the third defendant. The conduct of their case was based on the proposition that their acts were not tortious and were done as part of their duties as police officers and that they acted correctly and in no way improperly within the ambit of their duties. Hence the conduct of their case inevitably involved the third defendant; for the arrest and detention of the plaintiff and any physical restraint of him, and even on the facts admitted by the defendants, must inevitably have been tortious if done by a private individual and could only be justified as an exercise of Police power under the authority of the third defendant. Furthermore the issues raised by the Statement of Claim and the Defences pointed to a middle way as a real possibility, namely that torts had been committed by the first and second defendants for which the third defendant was vicariously liable. Had such a position been reached the first and second defendants would, through their notices of contribution, have claimed against the third defendant. Whether they would have been successful is not to the point. The point is that the first and second defendants thereby again involved the third defendant. 26. I find that the plaintiff's costs against the third defendant were reasonably and properly incurred and in all the circumstances it appears to me that a "Bullock" or "Sanderson" order should be made and the most convenient course would be the latter. 27. I order that the first and second defendants pay the costs of the third defendant to be taxed in default of agreement. 28. Further on the question of costs overall I certify that the proceedings were proper for the engagement of senior counsel.

Police Administration Act 1984(NT)

Gary Mark Lackerstein v Melvin Lawrence Jones, Kenneth Graeme Smith and Northern Territory of Australia

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Judgment (9 paragraphs)

Gary Mark Lackerstein v Melvin Lawrence Jones, Kenneth Graeme Smith and Northern Territory of Australia (No2) [1988] NTSC 72; 93 FLR 442 (15 November 1988)

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Legislation Cited (2)

Cases Cited (5)