99 There remain the claims by various parties to be entitled to a Bullock order in relation to costs ordered to be paid by them in these proceedings. The principles upon which such an order should be made are not controversial. The approach to be adopted, I think, is that stated by Gibbs CJ in Gould v Vaggelas (1983) 157 CLR 215 at 229, 230 as follows:
The third question for decision is whether the Full Court was right in setting aside an order made by Connolly J. whose effect was that the unsuccessful defendants to the counterclaim (Vaggelas, his wife and the vendor companies) should pay to the plaintiffs by counterclaim (the Goulds) the costs ordered to be paid by them to the successful defendants (Messrs. Ingles and Tiffin). It is sometimes said that the court may make an order of that kind - a Bullock order - where it was reasonable in all the circumstances for the plaintiff to bring the action against two or more defendants: see The Supreme Court Practice (U.K.) 1982, par. 62/2/39 and Halsbury's Laws of England , 4th ed., vol. 37, par. 219. There are some statements in the authorities which appear to support that view, including the judgment of Latham C.J. in Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation 55 (1948) 77 C.L.R. 544, at p. 556. In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution.
The ground on which a Bullock order may be made is, in my opinion, more accurately stated in a passage in Sanderson v. Blyth Theatre Co. 56 [1903] 2 K.B. 533, at p. 539, which was cited with approval in Bullock v. London General Omnibus Co. 57 [1907] 1 K.B. 264, at p. 272 and Hong v. A. & R. Brown 58 [1948] 1 K.B. 515, at p. 522, viz., that the costs which the plaintiff has been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed "are ordered to be paid by the unsuccessful defendant, on the ground that ... those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant". In Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation , Williams J. 59 (1948) 77 C.L.R., at pp. 572-573 stated the principle in a similar way and Starke and Dixon JJ., in giving their reasons for making a Bullock order, both relied on the circumstance that the attitude adopted by the successful defendant had induced the plaintiff to join the other defendant 60 (1948) 77 C.L.R., at pp. 559-560, 566. In my respectful opinion the true position was clearly stated by Blackburn C.J. in Steppke v. National Capital Development Commission 61 (1978) 39 L.G.R.A. 94, at p. 100; 21 A.C.T.R. 23, at pp. 30-31, 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".