Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor

LEGISLATION CITED: Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Roads Act 1993 (NSW)

Almeida v Universal Dye Works Pty Limited [No 2] [2001] NSWCA 156 CASES CITED: Gould v Vaggelas (1985) 157 CLR 215 Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101

CA 40257/05 Great Lakes Shire Council (Appellant) Philip James Dederer (First Respondent) PARTIES: Roads & Traffic Authority of NSW (Second Respondent) CA 40294/05 Roads & Traffic Authority of NSW (Appellant) Philip James Dederer (First Respondent) Great Lakes Shire Council (Second Respondent)

CA 40257/05 M McCulloch SC/S Glascott (Appellant) D T Kennedy SC/G Graham (First Respondent) COUNSEL: M J Cranitch SC/A C Casselden (Second Respondent) CA 40294/05 M J Cranitch SC/A C Casselden (Appellant) D T Kennedy SC/G Graham (First Respondent) M McCulloch SC/S Glascott (Second Respondent)

CA 40257/05 Phillips Fox (Appellant) Emery Partners (First Respondent) SOLICITORS: Henry Davis York (Second Respondent) CA 40294/05 Henry Davis York (Appellant) Emery Partners (First Respondent) Phillips Fox (Second Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 185

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40257/05 CA 40294/05 SC 20122/02

HANDLEY JA IPP JA TOBIAS JA

Monday 29 November 2006 GREAT LAKES SHIRE COUNCIL v DEDERER & ANOR ROADS AND TRAFFIC AUTHORITY OF NSW v DEDERER & ANOR [NO 2] Judgment - On Costs 1 HANDLEY JA: I agree with Ipp JA. 2 IPP JA: The plaintiff, Philip James Dederer, sued the Roads and Traffic Authority ("the RTA") and the Great Lakes Shire Council ("the Council") for damages for personal injury. The trial judge, Dunford J, upheld Mr Dederer's claim against both the RTA and the Council. His Honour decided that both the RTA and the Council were negligent. On appeal, this Court, by a majority, in its judgment of 5 October 2006 (see [2006] NSWCA 101), made the following orders:

"(1) The appeal by the Council is upheld with costs.

(2) The orders made by Dunford J against the Council are set aside and substituted by a judgment in favour of the Council with costs.

(3) Mr Dederer is granted a certificate under the Suitors Fund Act 1951 (NSW) if he is otherwise entitled.

(5) The orders of Dunford J in regard to the apportionment of damages is set aside and substituted with an apportionment of 50 per cent.

(7) No order is made as regards the costs of the appeal by the RTA." 3 When judgment was delivered in [2006] NSWCA 101, Mr Dederer was given leave to apply, in writing, for an order varying the costs orders. Pursuant to that leave, Mr Dederer seeks orders to the effect that the RTA pay the costs of the Council (being those that this Court ordered Mr Dederer to pay). 4 The order Mr Dederer seeks is commonly known as a Sanderson order (that is, an order by which an unsuccessful defendant is ordered to pay the costs of the successful defendant directly to that defendant). This differs from a Bullock order inasmuch as, by a Bullock order, the unsuccessful defendant is ordered to pay the plaintiff the costs of the successful defendant for which the plaintiff is directly liable. The principles governing whether or not a Sanderson or Bullock order should be made are, in substance, the same. They are well-settled. 5 In Gould v Vaggelas (1985) 157 CLR 215 Gibbs CJ said at 230: "In my respectful opinion the true position was clearly stated by Blackburn CJ in Steppke v National Capital Development Commission [(1978) 39 LGRA 94 at 100] when he said that 'there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely, 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 also Almeida v Universal Dye Works Pty Limited [No 2] [2001] NSWCA 156. 6 On 30 March 1999 Mr Dederer's solicitors wrote to the Council asking it to advise whether it was the authority "responsible for the bridge and for the signs positioned at each end of the bridge and along its length". On the same date they wrote to the RTA in the same terms. 7 On 14 April 1999 the Council replied stating that the bridge was "owned by and under the care and control of the [RTA]". On the same date, the RTA replied as well, stating that it was "responsible for the [bridge] and for the signs positioned at each end of the bridge and along its length". 8 Mr Dederer's solicitor stated in an affidavit filed in these proceedings: "As a result of the information that I received from both the RTA and the Council I was of the view that the only appropriate defendant in any proceedings would be the RTA. There was at that time no evidence to suggest liability on the part of the Council." 9 The New South Wales Government, in March 2002, announced that it proposed to make amendments to the law of negligence. These amendments were likely to affect Mr Dederer's rights. This precipitated the commencement of Mr Dederer's action. On 3 April 2002, Mr Dederer commenced proceedings against the RTA only. 10 On 20 August 2002 the RTA filed a defence admitting that it was the authority "responsible for" the bridge and the signs "positioned at each end and along the length of the bridge". On 6 December 2002 the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) commenced. 11 The trial was listed for hearing on 8 September 2003. In the week prior to that date, the RTA advised Mr Dederer that it proposed to seek an adjournment of the hearing to enable it to join the Council as a cross-defendant in the proceedings. This was the first indication that the RTA believed that the Council had any responsibility for Mr Dederer's injury. The RTA's application was granted and, in September 2003, the trial date was vacated and the defence amended. The amendment inserted the following paragraphs 2(b) and 2(c) in the defence: "(b) [The Council] had responsibility as the Roads Authority for the regional roads in the area, including Main Road 111 of which the Bridge was part and had the benefit of a block grant from the RTA for this purpose; and (c) In respect of the pedestrian way and 'No Diving' [pictograph] signs, the Council had the immediate control, day to day management and supervision, including but not limited to, the risk management of the Bridge …." 12 Significantly, the RTA, in its amended defence, continued to admit that it was the authority responsible for the bridge. The point of the amendment was to assert that the Council had joint responsibility for the bridge. 13 Mr Dederer's solicitor testified: "Until September 2003, I did not consider it appropriate to join the [Council] to the proceedings. At that stage I had no information from the RTA, or from any other source, to confirm any potential liability on behalf of the Council. Were it not for the application by the RTA on 5 September 2003 that would have remained the position and the matter would have proceeded against the RTA only. … The course that [Mr Dederer] took in these proceedings against the [Council] was as a result of information from and assertions by the RTA of the potential liability of the [Council]. In the absence thereof I would have not advised [Mr Dederer] to join the [Council]. Equally, if the RTA had not delayed for over four years in making the assertions it did in September 2003, the action against the Council would have been commenced prior to 5 December 2002." 14 Mr Dederer's solicitor stated that, once the RTA had made allegations implicating the Council, he considered it to be necessary that Mr Dederer join the Council in the proceedings. Thus, by leave granted on 5 September 2003, Mr Dederer amended his statement of claim by making the Council the second defendant. He thereby sued both the RTA and the Council. On 14 July 2004 the RTA filed a cross-claim against the Council. 15 On 21 September 2004 Mr Dederer filed a further amended statement of claim which alleged in paragraph 2: "On 31 December 1998 and at all material times the [RTA] was the controlling authority for the Forster/Tuncurry bridge and the responsible authority for the erection of signs approaching and upon the bridge. (a) Further, the [RTA], by its predecessor in law, the Department of Main Roads, was the authority responsible for the design and construction of the said bridge." 16 On 7 October 2004 the RTA filed a defence to the further amended statement of claim. In answer to paragraph 2 of that document, the RTA pleaded that "road" (as defined by the Roads Act 1993 (NSW)) included any bridge, and s 145 (of that Act) vested in the Council ownership of Main Road 111, of which the bridge was a part. The defence admitted that, under s 64 of the Roads Act, the RTA was given the statutory power to exercise the function of a road authority for Main Road 111, irrespective of whether the RTA was the road authority with respect to the bridge. The defence went on to assert that the Council had responsibility as the road authority for Main Road 111 "of which the bridge was part". It asserted that the Council had "immediate control, day to day management and supervision" in respect of the pedestrian way and "no diving" pictograph signs on the bridge. The defence pleaded that the RTA did not admit paragraph 2(a) of the further amended statement of claim and, otherwise, denied "the balance of the allegation [sic] contained in paragraph 2". 17 The effect of the defence to the further amended statement of claim was to withdraw the admission that the RTA had previously made in its defence and amended defence to the effect that it was the authority responsible for the bridge and for "signs positioned at each end and along the length of the bridge". 18 As is noted in [177] of my reasons in [2006] NSWCA 101, during argument in the appeal, senior counsel for the RTA conceded that the RTA was to be regarded as having created the bridge, that the bridge structure was "always the responsibility of the RTA", and that for the purposes of this case "there has been no issue that [the RTA was] generally responsible for the structural integrity of the bridge and its maintenance in that sense". Senior counsel in fact said: "We don't cavil with his Honour's finding in his judgment that the [RTA] was the Roads Authority in respect of the Road and that includes, generally, the whole of the bridge." 19 The trial judge, in fact, did not find that the RTA was the road authority for the bridge and nor did this Court. Nevertheless, as I observed in [177], senior counsel's observations and the way in which the appeal was conducted amounted to an acceptance that the RTA owed Mr Dederer a duty of care. 20 The written argument made on Mr Dederer's behalf submitted that it was in September 2003 that the RTA withdrew its admission that it was the relevant road authority. This proposition enabled Mr Dederer to argue that he joined the Council as a defendant in September 2003 because of the withdrawal of the admission. The argument must fail, however, as the RTA only withdrew its admission when it filed its defence to the further amended statement of claim on 7 October 2004. By then the Council had been joined for more than a year. 21 Next, it was submitted on Mr Dederer's behalf that the RTA did nothing prior to September 2003 to alert Mr Dederer to its contention that there was liability on the part of the Council. It was said that had the RTA advanced this contention before then, Mr Dederer would have commenced proceedings against the Council "well prior to the commencement of the Civil Liability Act". The relevance of this submission is that the ground on which Mr Dederer failed against the Council (according to the reasons of the majority, with whom Handley JA agreed on this point) was that the Council was exempted from liability by s 5L of the Act as the risk of the recreational activity in which Mr Dederer was engaged was "obvious". 22 There was no obligation on the part of the RTA, before the commencement of the Civil Liability Act, to advise Mr Dederer of the possible liability of the Council. I would add that the potential liability of the Council was obvious. See [138] and [140] of [2006] NSWCA 101. There was no need for Mr Dederer to rely on the RTA to ascertain whether or not the Council was a relevant road authority. This argument must be rejected. 23 Finally, it was submitted on Mr Dederer's behalf that if the assertions that were made in the amended defence and further amended defence had not been made then Mr Dederer would not have commenced proceedings against the Council. While this may be factually correct, it is not to the point. Mr Dederer commenced proceedings against the Council at a time when the RTA was admitting that it was the relevant road authority. I have pointed out that the amended defence and further amended defence did not withdraw this admission. The admission was withdrawn on 7 October 2004, more than a year after Mr Dederer had joined the Council. I would add that nothing the RTA said about the Council was factually wrong; the RTA did not mislead Mr Dederer nor did it conceal from him anything he could not with reasonable effort have found out himself. 24 It was submitted on Mr Dederer's behalf that, after the RTA had amended its defence in September 2003, "it was reasonable and essential for [Mr Dederer] to join the Council as a defendant in the proceedings." I accept that it was reasonable for Mr Dederer to join the Council. But that is not enough to warrant a Sanderson order. It must, in addition be shown that the conduct of the unsuccessful defendant was such as to make it fair to impose some liability on it for the costs of the successful defendant. That has not been established. 25 I would dismiss Mr Dederer's application with costs. 26 TOBIAS JA: I agree with Ipp JA. **********

14/12/2006 - Date of Judgment (29 November 2006) inserted on Cover Sheet & in Judgment - Paragraph(s) Not applicable

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.