TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Procedure - Costs - General rule - Costs follow the event - Co-defendants - Whether unsuccessful defendant should pay successful defendant's costs - Whether unsuccessful defendant should pay plaintiff's costs of action against successful defendant - Reasonableness of joinder of successful defendant - Relevance of conduct of unsuccessful defendant.

Post v Colbert (1978) 20 SASR 62; Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6; Gould v Vaggelas [1984] HCA 68; (1985) 157 CLR 215; Zved v Council of the Municipality of Woollahra (1998) NSW Conv R 55 - 842; Dimos v Willetts [2000] VSCA 154; (2000) 2 VR 170, referred to.

Respondent: D J Porter QC (31 October 2007), (K E Read 2 June 2008)

Judgment Number: [2007] TASSC 56

LATROBE FOOTBALL CLUB INC and EAST DEVONPORT FOOTBALL

1 The application of the plaintiff in the action that the defendant Latrobe Council indemnify him in respect of the costs of the action of the defendants Latrobe Football Club Inc and East Devonport Football Club Inc, is dismissed.

2 The application of the respondent to the appeals that the appellant Latrobe Council indemnify him in respect of the costs of the appeal of the appellants Latrobe Football Club Inc and East Devonport Football Club Inc, is dismissed.

3 The application by the plaintiff in the action that the defendant Latrobe Council pay his costs of the action against Latrobe Football Club Inc and East Devonport Football Club Inc in relation to liability, is dismissed.

4 The Latrobe Council is to pay the plaintiff's costs of the action against it in relation to liability, such costs not to include any additional costs incurred by him in his action against Latrobe Football Club Inc and East Devonport Football Club Inc.

5 The order at first instance "that the defendants pay the plaintiff's costs of the action in relation to liability" is set aside in its entirety.

6 An indemnity certificate in respect of the clubs' appeal (FCA 3/2007) is granted to the respondent Shane Leonard Williams under the Appeal Costs Fund Act 1968, s8.

LATROBE FOOTBALL CLUB INC and EAST DEVONPORT FOOTBALL

1 By an action, the plaintiff sued the Latrobe Council ("the Council") as the first defendant, Latrobe Football Club Inc ("LFC") as the second defendant and East Devonport Football Club Inc ("EDFC") as the third defendant. He claimed damages arising out of serious injuries to his left ankle which were suffered when playing Australian rules football for the EDFC reserves team on 27 March 2004. The match was played against the LFC reserves team on the oval at the Latrobe Recreation ground. The LFC was the home team for the purposes of the roster of the Northern Tasmanian Football League. The Council was the owner of the ground. The injuries were caused when the plaintiff's foot landed on the cover of an irrigation outlet that was set into the ground.

2 Following a trial as to liability only, it was found by a judge that all three defendants were liable in negligence for the plaintiff's injuries, that the Council's share of responsibility was 85 percent and that between them, the two clubs were responsible for the other 15 percent, without distinguishing between them, there being no need to do so because they had the same insurer.

3 All the defendants appealed to this Court. In essence, they attacked the findings that they breached the duty of care they owed the plaintiff. The appeal of the Council was dismissed but the appeal of the clubs was upheld. See Latrobe Council v Williams [2007] TASSC 77. The judgment against the clubs was set aside, along with the order that they contribute 15 percent of the assessed damages. Also set aside was an order that the clubs pay the plaintiff's costs of the action in relation to liability. In its place, it was ordered that the plaintiff pay the costs of the action of the clubs. Since those orders were made, the Court has also ordered that the Council pay the plaintiff's costs of its appeal and that the plaintiff pay the clubs' costs of their appeal.

4 Outstanding are three applications concerning costs. The first is an application by the plaintiff that the Council indemnify him in respect of the clubs' costs of the action, and of their appeal, he was ordered to pay. In other words, the plaintiff seeks what is known as a Bullock order against an unsuccessful defendant, in respect of the costs of successful defendants he was ordered to pay. The second is an application that the Council pay his costs of the action, including his costs of his action against the clubs. If an order of that nature is made, there should also be an order setting aside what remains of the order made by the learned judge, "that the defendants pay the plaintiff's costs of the action in relation to liability". That order was partly set aside when this Court ordered, on 27 September 2007, that the order that the clubs pay the plaintiff's costs of the action in relation to liability be set aside and in its place, that the plaintiff pay the costs of the action of the clubs. The third outstanding application is that the plaintiff, as respondent to the appeal by the clubs, be granted an indemnity certificate in respect of the appeal, pursuant to the Appeal Costs Fund Act 1968, s8.

5 In the statement of claim, the duty of care alleged to be owed to the plaintiffs by the Council was a duty to inspect and maintain the ground so that it was in a safe condition for playing football and level and free from holes, and so that any irrigation outlet covers on the playing surface were correctly fitted and adequately secured. The duty of care alleged to be owed to the plaintiff by the clubs was a duty to inspect the ground to ensure that the playing surface was in good condition and free from holes, and that any irrigation outlet covers on the playing surface were correctly fitted and adequately secured. The particulars of the alleged breaches of those duties by each defendant were similar. They were that the defendants failed to ensure that the ground was safe and in a reasonable condition for the purpose of playing football; failed to ensure that irrigation outlet covers on the playing surface were correctly fitted and adequately secured; failed to ensure that the level of the covers was the same as the immediately surrounding playing surface; and failed to cover the outlets with soil and grass, or such other means, so as to avoid a foreseeable risk of injury.

6 The learned trial judge found that the plaintiff's injuries were caused by his foot landing awkwardly, partly on the top of a cover and partly on the surrounding soil, the height differential being sufficient to cause them. The learned judge accepted the evidence of an orthopaedic surgeon, Professor Einoder, that a height difference of only half a centimetre was sufficient for the injuries to result and found that the top of the cover was at least half a centimetre below the surrounding soil. His Honour did not consider it necessary to make a more precise finding than that, but this Court considered that the evidence showed that the difference was considerably more than half a centimetre and may have been two centimetres or more. However, for those using the ground, the growth of grass around the edges of the cover was found by the learned judge to make it very difficult to discern whether the top of the cover was flush with the surrounding soil unless a very close inspection was made.

7 The breach by the Council of its duty of care to the plaintiff was found by the learned judge to be its failure, after the conclusion of the cricket season and before the football season, to remove the artificial covers and replace them with soil that was level with the surrounding soil and which was then sown with grass. This Court agreed, considering that the difference in height created a real risk of injury and that the risk would have been avoided if that had been done or if in some other way, such a substantial difference in height had been avoided by a proper construction of the outlet in question and its cover. The Court also considered that a finding should have been made that the structure of the pit and its cover was in some way deficient, and that the Council was liable in negligence simply because it failed to take reasonable care to construct the pit and its cover in such a way as to avoid a hard edge height differential of the magnitude that in fact existed or alternatively, failed to take reasonable care to maintain the pit and its cover in that condition.

8 The judgment against the clubs was based on a finding that they failed to take reasonable care by making a proper inspection of the surface of the ground before the playing of the match, in the course of which the plaintiff suffered his injuries. The Court did not disagree with the finding that the clubs owed a duty to the plaintiff to make such an inspection and to take reasonable care when doing so. However, what it held was that the standard of care required by the learned judge was too high. Having regard to the fact that the difference in height was very difficult to discern unless a very close inspection was made, perhaps even by the inspector getting down on hands and knees, the Court was of the view that the clubs were not required to make such a close inspection that would have revealed the true state of affairs and led to an avoidance of the plaintiff's injuries.

9 The injuries were suffered on 27 March 2004. On 18 May 2005, the plaintiff's solicitors sent letters to the Council, LFC and probably, EDFC, giving notice that they had been instructed to institute proceedings to recover damages. The letter to the Council asserted that it was the owner of the ground and responsible for maintaining it and that the plaintiff held it responsible for his accident because it failed to ensure that the playing surface was safe and particularly, that the surface was free of holes and that the irrigation covers were adequate. The letter to LFC asserted that the plaintiff held it responsible for his accident because it also failed to ensure that the playing surface was safe in the same way. The letter to EDFC was not produced to the Court, but if it was sent it is likely to have been in similar terms.

10 The writ was issued against the three defendants on 7 June 2005. It has not been suggested that prior to it, the Council did anything that induced the plaintiff, or in any way brought about the plaintiff's decision, to join the clubs as defendants. On the face of the information before the Court, it was the decision of the plaintiff, uninfluenced by the Council, that he would endeavour to have the clubs held responsible for his injuries.

11 The statement of claim pleaded the same particulars of negligence against all of the defendants. In its defence, the Council denied that it was the occupier of the ground and that it was responsible for the control, management and maintenance of the ground, and also denied the duty, and its breach, that had been alleged against it. However, on 19 March 2006 it made discovery of documents that included the lease of the buildings at the ground by the Council to LFC, a maintenance agreement and a service agreement. The documents made it clear that the Council was responsible for the maintenance of the ground. Notwithstanding its denial of that in its defence, the Council conducted its case on no other basis. Its real defence was that it took reasonable care for the plaintiff's safety.

12 On 6 June 2006, the clubs served on the Council notices that they claimed from it an indemnity in respect of the plaintiff's claim or alternatively, contribution under the Wrongs Act 1954. It was not until a month before the trial, on 9 November 2006, that the Council responded with a notice to the clubs that it claimed contribution from them under the Wrongs Act upon the same basis as the plaintiff alleged that they were liable to him, that is because they negligently failed to carry out a sufficient inspection of the ground prior to the playing of the match. Counsel for the Council made the point to the Court that it was simply protecting itself in the event that the plaintiff succeeded with its claim against all three defendants and that in the circumstances, it would have been foolish of the Council not to deliver such a notice to the clubs.

13 The trial of the action commenced on 7 December 2006. The Council did not dispute its responsibility for the maintenance of the ground or that its servants or agents constructed and installed the irrigation pit and its cover. Its case was that they were not in an unsafe condition and that it had taken reasonable care to ensure that. It was not its case that the clubs should be held responsible to the plaintiff. In his closing address its counsel raised an argument that as it was a public authority, the Council's breach of duty should be judged in accordance with the Civil Liability Act 2002, s38, an argument that was not available to the clubs.

14 The Court has a general discretion as to costs. The discretion must be exercised judicially, but there are no fetters or rules that govern its exercise. Costs usually follow the event, so that if a plaintiff unsuccessfully sues a defendant, the plaintiff will be ordered to pay that defendant's costs of the action. That is also the usual case where the plaintiff succeeds against one defendant but loses against another defendant. In that case the plaintiff will usually obtain an order for costs incurred in suing the unsuccessful defendant, but suffer an order for costs in favour of the successful defendant. Beaumont v Senior [1903] 1 KB 282 at 284; Vucadinovic v Lombardi [1967] VicRp 10; [1967] VR 81 at 87; Post v Colbert (1978) 20 SASR 62 at 65. The order for costs against the unsuccessful defendant will usually be construed as dealing only with the costs necessarily and properly incurred by the plaintiff in prosecuting the claim against that defendant only and not the additional costs incurred by the plaintiff in prosecuting the claim against the successful defendants. Dimos v Willetts (2000) 2 VR 150 at 187.

15 Because the discretion must be exercised judicially, the question that arises on the first application is whether it is just, as between the plaintiff and the Council, that the plaintiff should be indemnified by the Council for the costs incurred by the plaintiff in proceeding against the clubs. The question that is often asked is whether the costs of the successful defendant were reasonably and properly incurred by the plaintiff as between the plaintiff and the unsuccessful defendant. However, as was made clear by Wells J in Post v Colbert (supra), reasonableness in suing the successful defendant is not to be judged merely by asking whether, on the information available to the plaintiff, there was a reasonable prospect of success against the successful defendant. The question should be whether it was reasonable, as between the plaintiff and the unsuccessful defendant, for the plaintiff to sue the successful defendant and that the unsuccessful defendant ought in justice be liable to indemnify the plaintiff against the costs of so doing, including those which he is ordered to pay the successful defendant. Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 at 7.

16 Cases demonstrate that quite often, Bullock orders have been made because conduct of the unsuccessful defendant reasonably induced the plaintiff to sue or continue to proceed against the successful defendant. An example is where a principal has denied liability for its agent's actions, asserting that the agent did not have its authority, and on an action against both, the plaintiff succeeds against the principal but fails against the agent. See Johnsons Tyne Foundry Pty Ltd v Maffra Corporation [1948] HCA 46; (1948) 77 CLR 544.

17 In Gould v Vaggelas [1984] HCA 68; (1985) 157 CLR 215 at 229, the view of Gibbs CJ was that it was difficult to see any reason justifying the making of a Bullock order if there was nothing that the unsuccessful defendant had said or done that had led the plaintiff to sue the successful defendant. His Honour approved of a similar view expressed in Steppke v National Capital Development Commission (1978) 21 ACTR 23 at 30 - 31 by Blackburn CJ, who said that it was a condition for the making of a Bullock order that the conduct of the unsuccessful defendant had been such as to make it fair to impose some liability on it for the costs of the successful defendant, citing Bullock's case itself (Bullock v London General Omnibus Co [1907] 1 KB 264) per Collins MR at 269: "The common sense underlying this order is clear, because the learned judge when he made it has before him evidence that, owing to the attitude taken up by the General Omnibus Company, it was reasonable for the plaintiff to join the other defendants."

18 Care should be taken, however, against adopting any hard and fast rule. Ultimately, the question is one of justice between the plaintiff and the unsuccessful defendant. The view of Gibbs CJ was not the majority view in Gould v Vaggelas. Wilson J, at 247, simply said that such an order may be made where the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant. Murphy J agreed at 232. Brennan J went close to the view expressed by Gibbs CJ when, at 260, he said that the order could only be made "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." The fifth member of the court, Dawson J, did not deal with the question. The state of authority, it seems to me, is that, adopting the words of Giles J in Zved v Council of the Municipality of Woollahra (1998) NSW Conv R 55 - 842 at 56, 605, "reasonableness as between the plaintiff and the unsuccessful defendant will normally be demonstrated by some conduct of the unsuccessful defendant which made it proper that the successful defendant be joined or that the unsuccessful defendant should bear the costs of the successful defendant", but the absence of any such conduct will not necessarily defeat the plaintiff's application for the order because of the general nature of the discretion being exercised by the court.

19 There was no conduct on the part of the Council, in a material sense, that led to the decision of the plaintiff to join the clubs as defendants or to persist with its action against them. Counsel for the plaintiff submitted that there were three actions or matters of conduct by the Council that all amounted to relevant conduct, but I regard them as lacking in substance. First, he relied on "the nature of the tortious conduct" as making the joinder of the clubs a reasonable step to take as between the plaintiff and the Council. He referred to the Council being responsible for the unsafe state of the irrigation outlet and as having "presented" that unsafe state to those who were to use the ground. While that circumstance justified suing the Council, I do not regard it as justifying suing the clubs, as between the plaintiff and the Council. Second, he relied on the fact that the Council served notices of contribution on the clubs. There is no reason to think that fact in any way influenced the plaintiff. The notices were delivered less than a month before the trial as a cautionary measure by the Council to give to itself a measure of protection should the plaintiff succeed against all defendants. In no real way did the Council point the finger of blame at the clubs in its dealings with the plaintiff. Third, counsel referred to the submission by the Council in the closing address of its counsel, seeking to gain an advantage for his client through the provisions of the Civil Liability Act, s38. That circumstance deserves no more weight than the fact that the Council defended the action against it.

20 The conclusion I have come to is that the making of a Bullock order is not justified. Ultimately, it seems to me, the only argument the plaintiff has available to it is that it was uncertain as to whether it would succeed against any of the defendants and sued them all, hoping that he would prove his case against at least one of them. It was not a case in which it could be said with confidence that one of them had to be found liable, but he was not sure which one it would be. It is a case of suing them all to increase his chances of success. I do not regard that state of affairs as warranting a departure from the usual course that an unsuccessful plaintiff should bear the costs of a successful defendant.

21 For these reasons, I would reject the plaintiff's applications for Bullock orders concerning the clubs' costs of the action, and of their appeal, that he was ordered to pay.

22 For similar reasons, I would refuse the second application by the plaintiff, namely that the Council pay his costs of his action in relation to liability against the clubs. He should have an order that the Council pay his costs of his action in relation to liability against the Council, such costs not to include any additional costs incurred by him in his action against the clubs. I would set aside what is left of the order made by the learned judge that the defendants pay the plaintiff's costs of the action in relation to liability.

23 There should be granted to the plaintiff an indemnity certificate in respect of the clubs' appeal (File FCA 3/2007) under the Appeal Costs Fund Act, s8.

LATROBE FOOTBALL CLUB INC and EAST DEVONPORT FOOTBALL

24 I agree with the reasons of Crawford CJ and the orders he proposes.

LATROBE FOOTBALL CLUB INC and EAST DEVONPORT FOOTBALL

25 These reasons relate to a dispute about orders for costs to be made as a consequence of orders disposing of two appeals and relate to hearings on 31 October 2007 and 2 June 2008.

26 Shane Leonard Williams sued the Latrobe Council, the Latrobe Football Club Inc and the East Devonport Football Club, claiming damages as a result of an injury he suffered to his leg while playing football for one of the football clubs against the other in a reserve grade match at the Latrobe Recreation ground in March 2004. The ground was owned by the council. The action proceeded to trial on liability only and Mr Williams was successful against all three defendants. The council was found to be 85 per cent liable while the football clubs together were found to be 15 per cent liable. The learned trial judge ordered "That the defendants pay the plaintiff's costs of the action in relation to liability."

27 The council and the football clubs appealed. The appeals were heard together. The appeal by the council in proceedings numbered FCA2/2007 was unsuccessful, while that by the football clubs in proceedings numbered FCA3/2007 was successful. The effective result was that the council was wholly responsible for any damages to be recovered by Mr Williams. The decision in respect of the two appeals was handed down on 27 September 2007. At the time, two orders were made relating to costs. These were:

"5 Order that the Latrobe Football Club Inc and East Devonport Football Club Inc pay the plaintiff's costs of the action in relation to liability set aside and in its place ordered that the plaintiff pay the costs of the action of the Latrobe Football Club Inc and East Devonport Football Club Inc.

28 On the same day judgment was handed down, Mr Williams' solicitors wrote to the Court advising that the day before judgment was handed down, they had discussed with their counsel the need for a Bullock/Sanderson order in the event Mr Williams was ordered to pay the football clubs' costs of the action. They further advised that an application for such an order should have been made but, inadvertently, was not. They advised they wished to make such an application.

29 On 4 October 2007, the solicitors for the football clubs also wrote to the Court. Their letter was in the following terms.

"We refer to the orders of the Full Court of the Supreme Court of Tasmania dated 27 September 2007 reserving any applications for costs in either appeal and an application for costs by the Latrobe Football Club Inc and East Devonport Football Club Inc in the co-defendant proceedings in action number 209 of 2005.

The Latrobe Football Club Inc and East Devonport Football Club Inc apply for the following orders:

1 That the plaintiff pay the costs of the appeal of Latrobe Football Club Inc and East Devonport Football Club Inc;

2 That Latrobe Council pay the costs of the co-defendant proceedings of Latrobe Football Club Inc and East Devonport Football Club Inc in action number 209 of 2005;

3 ."

30 On 31 October 2007, the various costs applications came before the Court. Mr Williams' counsel handed up a document setting out the orders sought. These were:

"1 That the Latrobe Council indemnify the plaintiff (respondent) in respect of the order for costs made, by which the plaintiff is to pay the costs of the action of the Latrobe Football Club Inc and East Devonport Football Club Inc.

2 That the appellant in FCA 2 [that is the Latrobe Council] pay the respondent's costs of the appeal.

(a) the respondent pay the appellants' [that is the two football clubs] costs of the appeal in FCA 3 of 2007;

(b) the appellant in FCA 2 of 2007 [that is the Latrobe Council] indemnify the respondent in respect of order No 3(a); or

(c) the respondent be granted an indemnity certificate in respect of the appeal pursuant to the Appeal Costs Fund Act, s8."

Orders sought numbered 2 and 3(a) were made by consent that day, effectively disposing of anything directly involving the football clubs. What remained were applications by Mr Williams that he be indemnified by the council in respect of costs he had been ordered to pay to the football clubs in relation to the trial and their successful appeal. The Court heard argument about this matter and reserved its decision that day. However, before any decision was handed down, a further dispute about costs arose between the parties.

31 The further dispute arose as a result of a taxation of costs which commenced before a taxing officer on 19 December 2007. Between 31 October 2007 and 19 December 2007, a number of steps had been taken. On 12 November 2007, the solicitors for the football clubs took out a formal order giving effect to order 3(a) referred to in the preceding paragraph. On 19 November 2007, the same solicitors took out a further formal order giving effect to the disposition of their appeal against Mr Williams in FCA3/2007 by this Court on 27 September 2007.

32 On 28 November 2007, the assessment of Mr Williams' damages was resolved and an order made which included an order that the council pay his costs (of the assessment) on a party and party basis to 1 pm on 19 November 2007. As a consequence of that order, Mr Williams' solicitors prepared a bill of costs for taxation, I presume as to both liability and quantum, and thereafter attended a taxation of those costs with solicitors for the council. At that taxation, a dispute arose as to whether Mr Williams' costs to be paid by the council should include his costs of his unsuccessful action against the football clubs. The taxation was then adjourned before any formal ruling was made by the taxing officer to resolve the dispute. Mr Williams' solicitors then sought that this Court, before it delivered any decision in respect of the Bullock order application, reconvene to consider further submissions relating to costs to, in effect, resolve the dispute which had arisen at the taxation. On 13 February 2008, Mr Williams' solicitors filed an application by which they sought an order that the council pay his costs of the action in relation to liability as against the two football clubs. The Court's jurisdiction to deal with such an application was disputed by the council. The application was ultimately heard on 2 June 2008 and the Court's decision reserved.

33 In summary, there is no dispute that the council should pay Mr Williams' costs of trial and its unsuccessful appeal. The issues are whether:

• the council should also pay the football clubs' costs of the trial and appeal which were ordered to be paid by Mr Williams (the Bullock order application), and

• the council should pay Mr Williams' costs of suing the football clubs.

The Bullock order application - reserved 31 October 2007

34 The Court's discretion to order the payment of costs by one party to another is a general one. Costs will usually follow the event. If that principle is applied in this case, because Mr Williams was unsuccessful in his suit against the football clubs, he should be responsible for paying their costs. Mr Williams does not dispute that the primary liability for the costs of the football club lies with him. What he asks the Court to do is exercise its discretion in his favour by making a further order that the council indemnify him in respect of those costs. The Court's power to make such an order is not challenged. The council submits however, that the circumstances of these matters are such that the Court should not exercise its discretion in favour of Mr Williams as sought, but should simply leave the responsibility for the costs orders with him.

35 Professor Dal Pont discussed Bullock and Sanderson costs orders in his text The Law of Costs, 2003 commencing at 333. He described the reasoning behind such orders as being that a plaintiff should be indemnified for all expenditure he or she has reasonably and properly incurred in procuring judgment, which may include the costs of suing one or more of a number of defendants unsuccessfully. He discussed the discretion of a court to make such an order and set out a number of factors, extracted from the authorities, relevant to the exercise of that discretion. He identified the reasonableness of the joinder, the reasons for the joinder and the conduct of the defendants as relevant to the exercise of the Court's discretion. Notwithstanding those factors, what must be borne in mind is that an order such as that sought is not a right of a plaintiff but is entirely within the discretion of the court. That discretion must be exercised judicially or according to the justice of the case.

36 Mr Williams injured his leg on 27 March 2004. In May 2005, his solicitors wrote to the council and both football clubs advising that proceedings were to be instituted against each of them arising out of the incident. A writ was issued shortly thereafter against all three entities. There was no suggestion that Mr Williams' decision to sue all three was in any way the result of anything done by the council. In his statement of claim, Mr Williams asserted that the council and the football clubs owed him a duty of care. The duty of care said to be owed by the council was to inspect and maintain the recreation ground to ensure it was safe to play football on, the surface was level and free from holes, and that any sprinkler or tap covers on the playing surface were correctly fitted. As against the football clubs, the duty of care was said to be to inspect the ground and ensure the playing surface was in good condition, free from holes, and that the sprinkler or tap covers were correctly fitted. Each of the defendants was said to have breached the duty of care they owed.

37 The council denied it was the occupier of the ground and that it was responsible for the control, management or maintenance of it. The football clubs did not admit they owed the duty asserted and said that, in any event, the place where Mr Williams landed was not near an irrigation tap hole.

38 In June 2006, solicitors for the football clubs gave notice to the solicitors for the council by which they sought contribution. By that notice, the football clubs asserted, in substance, the same particulars as had Mr Williams. In November 2006, solicitors for the council gave a notice of contribution to the football clubs. By that notice, the council asserted the clubs were responsible for the conduct of the relevant football match and had a duty to inspect the ground and had either not done so or had done so negligently. At trial, the council did not pursue its case on the basis it was not responsible for the ground, but argued that it had, in effect, done all that it could and should. It did not suggest the football clubs were responsible in its place.

39 At trial, it was found that Mr Williams' injury occurred when his foot landed partly on and partly off the cover over an irrigation outlet. There was a height difference between the cover and the surrounding soil, sufficient to cause his ankle to be injured. The learned trial judge accepted that a height difference of only approximately half a centimetre was sufficient to have caused the injury suffered. The learned trial judge found that the council owed a duty of care and that it had breached it by failing, for the purpose of the football season during which this game was being played, to remove the covers over the irrigation outlets and replace them with soil to the level of the surrounding soil and then cover them with grass. As to the football clubs, it was found that they had breached their duty of care, in essence, by failing to inspect the football ground in such a way as to be able to discern the problem with the covers over the outlets. On appeal, this Court upheld the finding against the council but determined that the finding in respect of the football clubs imposed too high a duty upon them.

40 Mr Williams argued on this application that it was reasonable to join the football clubs because there was a reasonable state of uncertainty as to which of the three defendants would be found liable, suggesting the considerations against each were different. It was submitted that any one of the defendants, or a combination, could have been found liable and that it was, in the circumstances, proper to join all three to avoid a multiplicity of actions. Given the nature of the pleadings in this case, it is hard to envisage a possibility that the council, if anyone were to be found liable, would not have been the primary focus of liability. In Post v Colbert (1978) 20 SASR 62, Wells J identified that an assertion that it was reasonable to join a particular party can be understood in at least two ways. In one case, it may mean that a plaintiff joined a party because there was a reasonable prospect of success against them. On the other hand, it might mean the person joining the ultimately successful defendant might have been in a reasonable state of uncertainty as to which of two or more of the parties to the action were liable, and thus felt constrained to join them. Wells J determined that the considerations were different depending on the reason for joinder and that, absent something exceptional, joinder for the first reason was unlikely to result in an order of the type being sought here.

41 In this case, notwithstanding the submission of counsel for Mr Williams, joinder of the football clubs appears to have been a step taken more to ensure that all bases were covered rather than any issue of reasonable uncertainty.

42 It has been said that reasonableness as between a plaintiff and an unsuccessful defendant will normally be demonstrated by some conduct of the unsuccessful defendant which made it proper that the successful defendant be joined. Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 56-605. There was no suggestion the council did anything prior to the issue of the writ which would have placed Mr Williams in the position of having to join the football clubs. Further, contrary to the written submissions of Mr Williams' counsel, it was the football clubs who delivered a notice of contribution in June 2006 to the council. The council's notice of contribution was not delivered to the football clubs until some months later and, it may be assumed, was delivered out of an abundance of caution, given what it had received from the clubs. It was not the case that the council initiated the seeking of contribution as between defendants, nor can it be said that this move somehow impacted upon Mr Williams' position as to joinder. Mr Williams' counsel also suggested that a closing argument by counsel for the council by reference to the Civil Liability Act 2000, s38, was somehow conduct to which regard should be had as justifying the order now sought. It was not referred to by the trial judge, nor argued on appeal which suggests the level of importance which should be attached to it.

43 An application for an order such as that sought here by Mr Williams must ultimately depend on the facts of this case and be determined by what is just as between him and the council. I am not persuaded, having regard to the matters raised by counsel which I have canvassed, that there are facts which justify the exercise of the Court's discretion in favour of Mr Williams in this matter. The application by Mr Williams for an order that he be indemnified by the council for the costs of the football clubs he has been ordered to pay, should be refused.

The second application - decision reserved 2 June 2008

44 Having been directed to file a written application to articulate the order sought following correspondence between the Court and the solicitors for the parties, Mr Williams' solicitors filed an application on 13 February 2008 by which they sought an order that the council pay his costs of the action in relation to liability as against the football clubs. The council disputed the Court's jurisdiction to make such an order. It became apparent at the commencement of the hearing that the reason why counsel for the council disputed jurisdiction was that he held the view that order 6 (see par4) referred only to costs of the appeals and that order 5 effectively disposed of costs issues relating to the trial. As a consequence, once order 5 had been formally entered, there was no, or very limited, capacity in this Court to alter it. The only jurisdiction remaining related to costs of the appeals.

45 What order 5 did was remove any obligation from the football clubs to pay Mr Williams' costs of the trial and to replace it with an order that he pay theirs. It and order 6 left outstanding issues of costs as between Mr Williams and the council of trial and the appeal and the appeal costs of the football clubs as between them and Mr Williams. That last matter was resolved by orders made by consent on 31 October 2007. Counsel for the council did not, when this view of matters was put to him by the Court during the hearing, seek to pursue arguments about jurisdiction, but simply addressed the Court as to the merits of Mr Williams' application.

46 The hearing ultimately was short, counsel for Mr Williams conceding that this application would stand or fall on the same arguments as those on the Bullock order application. The question which arises is, should the Court impose upon the council an obligation to pay the costs incurred by Mr Williams in unsuccessfully suing the football clubs? For the same reasons canvassed earlier in these reasons in relation to the Bullock order application, I am not persuaded there are any factors which would justify the Court in exercising its discretion in Mr Williams' favour.

47 The application of Mr Williams filed 13 February 2008 should be dismissed.