Ritchie v Advanced Plumbing and Drains Pty Ltd

Success on all but one issue

1. The plaintiff submitted that she was successful on all issues in the case except in relation to the welding endorsement. In that regard, the plaintiff submitted that the bulk of the trial time was occupied by the examination and cross-examination of witnesses on all of the matters on which the plaintiff succeeded. The only evidence in relation to the welding endorsement came from Mr Rankin and Mr Olsson.
2. The plaintiff submitted that the authorities demonstrate that the Court may apportion costs between a particular issue or group of issues which are clearly dominant or separable. Reference was made to Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 and Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304.
3. In relation to the plaintiff's partial success in the proceedings, CGU submitted that the ordinary position is that costs should follow the event. CGU said that ordinarily the Court should not differentiate between issues on which the party succeeded and failed.
4. CGU submitted that there is a basis for distinguishing between the position of successful defendants and successful plaintiffs. Reliance was placed on Sze Tu v Lowe (No 2) [2015] NSWCA 91 to submit that it may be considered appropriate that a defendant should have costs associated with reasonable defences, even if they ultimately prove to be unsuccessful and severable: Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145.
5. CGU submitted that it was reasonable to raise the defences associated with whether the fire occurred in connection with the business of APD and whether reasonable precautions were taken within the meaning of the policy. CGU submitted that the "reasonable precautions" ground did not require the adducing of much additional evidence, and did not occupy much hearing time. It was also not separable from the other defences.
6. CGU submitted that it was entitled to be compensated for all of its costs, in accordance with the compensatory principle, which costs would never have been incurred if the plaintiff had conceded the welding endorsement ground from the outset.
7. The principles concerning apportionment of costs are set out in a number of authorities including Bostik Australia at [38]; Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]-[25]; Sydney Ferries v Morton (No 2) [2010] NSWCA 238 at [10]-[12]; Griffith at [16]-[20]; and Sze Tu at [40]-[42]. They do not need to be repeated here except to note, that where there is a mixed outcome in proceedings, the matter ultimately depends on matters of impression and evaluation: Bostik at [38], Sze Tu at [40] and Dodds Family Investments Pty Ltd v Lane (1993) 26 IPR 261 (approved in Sydney Ferries at [10]).
8. A distinction seems to have been made (see both Griffith and Sze Tu) between unsuccessful plaintiffs and unsuccessful defendants. The basis for that difference seems to be that it is the plaintiff who chooses to bring the claims, and the defendant should not be prevented from raising whatever reasonable defences it can.
9. Whilst it is the case that CGU succeeded on one issue only, that issue cannot be said to be an entirely discrete one in terms of the evidence given about the power cutter at the hearing, or the time taken in relation to it. Some of Mr Hooper's evidence related to the endorsement, as did the bulk of Mr Olsson's evidence and all of Mr Rankin's evidence.
10. Nevertheless, a significant focus of the evidence and submissions was on (1) the issue of whether APD was liable for the breaches of duty of Messrs Orford and Elliott, and whether the work being carried out formed part of APD's "Business" as defined in the policy; and (2) the issue of whether reasonable precautions were taken within the meaning of cl 7.3 of the policy. Mr Hooper was cross-examined at some length about the precautions taken. This evidence could only have been relevant to cl 7.3 and not to the precautions required by the Australian Standard if the power cutter fell within the endorsement. This was because the plaintiff admitted in opening the case that the precautions required by the Standard had not been adhered to.
11. The issue of compliance with cl 7.3 appears to have been an afterthought on CGU's part. It was not put forward in the letter of March 2018 denying indemnity, and it first appeared in the defence to the further amended statement of claim in September 2021. CGU was put on notice that if it maintained that defence the plaintiff would need to call evidence regarding the conduct of Messrs Orford and Elliott. That evidence from Mr Hooper and Mr Elliott took some time.
12. I have taken into account the fact that it was the defendant who was ultimately successful, but that success derived very largely from a proper construction of the endorsement to the policy, and much less from the evidence given about the power cutter itself, as my earlier judgment shows. A part of the evidence related to that issue, but the issue principally involved legal argument. The issue involved a small proportion of the time at the trial.
13. I consider, in the exercise of my discretion, that the plaintiff should pay 60% of the defendant's costs.

Notice to admit facts

1. In relation to the Notice to Admit, the plaintiff submitted that CGU, having served a notice disputing pars 2, 3 and 4 of the Notice to Admit Facts (see at [15] and [16] above) then said on 2 June 2021 that it would admit those facts in a proposed further amended defence. The plaintiff submitted that in that 12 months period it incurred substantial expert and other costs in preparing to prove the contested facts.
2. The plaintiff accepted that the Court may order otherwise than r 42.8 Uniform Civil Procedure Rules 2005 (NSW) provides, but submitted that it should not do so in the present case. This was because on 18 March 2018 CGU denied indemnity on two grounds, being the "Business" clause and the welding endorsement. At that time, CGU knew that the workers were using a power cutting wheel, that it produced sparks, and that no added precautions were taken in relation to that.
3. The plaintiff submitted that at the time CGU were served with the Notice to Admit it had the benefit of the police interviews given by Mr Orford, Mr Elliott and Mr Hooper, and also the conclusion of Campbell J in Margaret Ritchie at [23], that the "material before me does not indicate any other possible source of ignition". The plaintiff submitted that at no stage did CGU advance an alternative causation case. In those circumstances, the plaintiff submitted, it was not reasonable to put the plaintiff to the cost of preparing expert evidence to prove obvious and irresistible conclusions, only to capitulate before trial.
4. CGU submitted that the Notice to Admit was served prior to any evidence being filed in the proceedings, apart from what had been filed in support of the joinder motion. In particular, the plaintiff had not been served with the evidence from Mr Elliott as to the work being done on site, and had not been served with the evidence from Mr Fullagar (who he was, was not made clear) or Mr Woods regarding the causes of fire.
5. CGU accepts that par 4 was subsequently admitted on 2 June 2021, but does not accept that those paragraphs were subsequently proved or admitted. That is because those paragraphs referred to "adjacent" dry vegetation. The Statement of Agreed Facts filed by the parties did not include any fact as to the distance between where Messrs Orford and Elliott were working and the edge of the dry grass; nor did the Court find that the dry grass was adjacent to where they were working. CGU relied on what was said in Gresham Property Investments Limited v Global Consulting Services Pty Limited; Global Consulting Services Pty Limited v Gresham Property Investments Limited (No 2) [2018] NSWSC 433 at [13].
6. CGU submitted that the Court should otherwise order by reason of those matters.
7. Rule 42.8 of the UCPR provides: 42.8 Dispute of fact subsequently proved or admitted (1) In this rule - disputing party means the party who serves a notice disputing a fact under rule 17.3(2). fact in dispute means the fact that is the subject of a notice served under rule 17.3(2). requesting party means the party who is served with a notice disputing a fact under rule 17.3(2). (2) Unless the court orders otherwise, the disputing party must, after the conclusion of proceedings in which a fact in dispute is subsequently proved or is subsequently admitted by the disputing party, pay the requesting party's costs, assessed on an indemnity basis, being costs incurred by the requesting party - (a) in proving the fact, or (b) if the fact has not been proved - in preparation for the purpose of proving the fact. (3) An entitlement to costs under this rule is not affected by any order as to costs unless that order makes particular reference in that regard.
8. CGU's first reason for submitting that the Court should otherwise order is that evidence had not been served as to the work being done on the site, and as to the cause of the fire. However, the letter of 16 March 2018 from CGU to APD declining indemnity was written on the basis that it was the use of the power cutter which was responsible for the fire. CGU knew enough to know that the power cutter had been used without adequate precautions being taken to avoid what occurred. The letter said (inter alia): The Cutting/Grinding Works were part of the preparation and laying of metal reinforcement mesh, … The endorsement requires that where Advanced uses spark producing equipment in undertaking a spark producing activity, such as was the case in using the power cutter to cut the metal reinforcement mesh, the works are to be undertaken in strict compliance with Australian Standard AS 1674, … The Cutting/Grinding Works fall within the definition of hot work under the Standard which prescribes precautions to be taken to prevent fire or explosion (clause 5.1 of the Standard). … There were no adequate precautions taken and no extinguisher provided at all.
9. Further CGU had the benefit of the police statements from which it was entirely clear how the fire started. If that was not sufficient, the application under s 5 of the Third Party Claims Act was conducted by CGU on the basis that the fire was caused by sparks from the power cutter which ignited the grass; see Margaret Ritchie at [8] and the finding at [23].
10. The second reason relates to the use of the word "adjacent" in the Notice to Admit. It is difficult to understand what the problem is from the use of the term "adjacent". The word is governed by its context, and CGU had the ERISP of Mr Elliott who referred to where the fire started and how far away that was from where he was working. Mr Hooper in his ERISP described the area they cleared between where the men were working and the grass. In Margaret Ritchie Campbell J used the word "nearby" at [8].
11. This was not at all a case like Gresham Property. The precise distance to the dry vegetation was not the point. The point was that the sparks from the power cutter ignited the dry vegetation. That was known to CGU from the police material available to them. The terms of the letter of 16 March 2018 make clear that CGU knew what was being alleged. The denial of liability in that letter in reliance on the welding endorsement makes clear that CGU knew that the power cutter had emitted sparks which ignited the vegetation. That was clear from a combined reading of Mr Elliot's statement and his ERISP. In that statement he also made clear that, while Mr Orford had been smoking, he threw his butt into the trench where he was working.
12. CGU relied on what was said by White J in Buzzle Operations Pty Limited (in liq) v Apple Computer Australia Pty Ltd (No 2) [2010] NSWSC 490 at [11]: I have been taken to little authority on how the court should approach a decision as to whether to make a contrary order under r 42.8(2). As a matter of principle the discretion to make a contrary order is to be exercised having regard to s 56 of the Civil Procedure Act 2005 (NSW) and, in particular, in this case, what order is required to facilitate the just resolution of the real issues in the proceedings. In my view it would be a proper exercise of discretion under r 42.8 to make a contrary order if the facts sought to be admitted were significant to the outcome of the proceedings and if the party asked to make the admission was not, at the time the notice was served, in a position to assess whether the fact was or was not true.
13. I am satisfied that CGU was in a position to make an assessment of the truth or otherwise of the facts which the plaintiff sought to have admitted. The judgment of Campbell J in Margaret Ritchie was given in August 2019. The report from Mr Woods had been served on 16 September 2020. Whatever uncertainty may have existed prior to the service of that report about the cause of the fire, and the detail of where it began, the report put paid to that uncertainty. Yet, still CGU made no admission until June 2021.
14. No basis has been shown for otherwise ordering.

CGU's Motion

1. Rule 42.15A of the UCPR provides: 42.15A Where offer not accepted and judgment no less favourable to defendant (1) This rule applies if the offer is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim no less favourable to the defendant than the terms of the offer. (2) Unless the court orders otherwise - (a) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis - (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
2. The terms of the Offer of Compromise were these: The Second Defendant offers to compromise the whole of this claim on the following terms: 1. Judgment for the Second Defendant. 2. An order under s 179 of the Civil Procedure Act 2005 (NSW) ("the ACT") that the judgment binds the Plaintiff and all group members identified in paragraph 3 of the Amended Statement of Claim filed 9 September 2019, except for those group members who have opted out of the proceedings under s 162 of the Act. 3. No order as to costs. 4. The Offer of Compromise is open for acceptance for a period of 28 days. 5. This Offer of Compromise is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005.
3. CGU submitted that it served an Offer of Compromise which complied with r 20.26 UCPR. It submitted that, although the offer was a "walk away" offer, it still represented a genuine compromise because of the amount of costs already incurred by CGU. CGU submitted that at the time of the offer the plaintiff had all the information to assess the offer and, in particular, to assess the strength of the welding endorsement defence. CGU submitted that simply because the offeree shows that it was reasonable to reject the offer, that is not a sufficient reason for ordering otherwise.
4. The plaintiff submitted that the proceedings were representative proceedings with an "open class". Some 74 persons had registered their claims, and 16 had opted out. The plaintiff submitted that the offer would result in none of the members of the class receiving any compensation, and the plaintiff would be required to pay her own costs. The offer was not made subject to court approval. The plaintiff submitted that the offer was neither fair nor reasonable.
5. The plaintiff submitted that the offer did not include any element of compromise with respect to the claims of the group members. The plaintiff submitted that the offer was not capable of acceptance; court approval was necessary and would not have been given.
6. In Bradley Bates v Robert Henry Cooke (No 2) [2014] NSWSC 1322 Kunc J said at [33]: Taking into account the language of r 42.15A, a party seeking to persuade the Court to order otherwise must identify some feature or features of one or more of the proceedings, the claim, the offer (including, for example, when it was made) and the order or judgment obtained by the successful party which provide a rational basis for the Court to displace what the rule specifies is the costs order to which "the defendant is entitled".
7. In my opinion the rational basis for displacing the costs order which would otherwise flow from r 42.15A is the nature of the offer made to a plaintiff in representative proceedings. There are two aspects to it. The offer required the plaintiff to accept the offer on behalf of the open class, an offer which would provide no compensation to them in circumstances where they were at no adverse costs risk. There was no element of compromise for the other members of the class apart from the plaintiff, and yet those other members would be bound by the settlement.
8. More significantly, the offer was unconditional, but acceptance of it required court approval: s 173 Civil Procedure Act. In the first place, it was not possible for the offer to be accepted because of the requirement for approval. At best, the plaintiff could have conditionally accepted the offer subject to the approval of the court, but the offer did not permit a conditional acceptance.
9. In Johnston v Endeavour Energy [2016] NSWSC 1132 Hoeben CJ at CL set out the principles to be applied where approval of a settlement was sought under s 173. His Honour said: [22] The principles that govern an application for approval of a settlement of a group proceeding are well established: (i) The central question for the Court is whether the proposed settlement is fair and reasonable in the interests of the group members as a whole (Rowe v AusNet Electricity Services Pty Ltd and Ors [2015] VSC 232 at [49] - [51]; Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 16) [2013] VSC 74 (Matthews) at [34]; Wheelahan & Anor v City of Casey & Ors [2011] VSC 215 (Wheelahan) at [57] (EmertonJ) citing ACCC v Chats House Investments Pty Ltd & Ors [1996] 71 FCR 250; FCA 1119 at 258 (Branson J) (Chats House). (ii) There will rarely be one single or obvious way in which a settlement should be framed, either between group members and the defendants (inter partes aspects) or in relation to sharing the compensation among group members (inter se aspects) - reasonableness is a range and the question is whether the proposed settlement is within that range (Darwalla Milling Co Pty Ltd v F Hoffman-La Roche & Ors Ltd (No 2) [2006] FCA 1388; 236 ALR 322 at 336 [40] (Jessup J) (Darwalla). (iii) It is not the task of the Court to "second-guess" or go behind the tactical or other decisions made by the plaintiff's legal representatives, but rather to satisfy itself that the decisions are within the range of reasonable decisions according to the known circumstances and the reasonably perceived risks of the litigation (Matthews, Darwalla, see also Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 6) [2011] FCA 277 at [22] (Flick J) (Pharma); Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 at [12] (Modtech) (Gordon J). (iv) In assessing the fairness and reasonableness of a proposed settlement the court relies heavily upon the candid, frank and confidential opinions provided to it by the plaintiff's legal representatives requiring them to disclose the factors which were material to the decision to accept the settlement (Thomas v Powercor Australia Limited [2011] VSC 614 at [18] (Beach J) (Powercor); Wheelahan at [75]; Rod Investments (Vic) Pty Ltd v Abeyratne & Ors [2010] VSC 457 at [11] and [18] (Almond J) (Abeyratne); Lopez v Star World Enterprises Pty [1999] ATPR 41 - 678 at 42 - 670; [1999] FCA 104 (Finkelstein J) (Lopez). (v) The factors adopted in Williams v FAI Home Security Pty Ltd (No 4) [2000] 180 ALR 459; [2000] FCA 1925 (Williams) indicate some of the considerations typically relevant to an assessment of an application for approval. As Goldberg J pointed out in Williams, this is a useful but not exhaustive guide. Those considerations are: (vi) (A) The complexity and duration of the litigation. (vii) (B) The reaction of the class to the settlement. (viii) (C) The stage of the proceedings. (ix) (D) The risks of establishing liability. (x) (E) The risks of establishing damages. (xi) (F) The risks of maintaining a class action. (xii) (G) The ability of the defendants to withstand a greater judgment. (xiii) (H) The range of reasonableness of the settlement in light of the best recovery; and (xiv) (I) The range of reasonableness of the settlement in light of all of the attendant risks of litigation. (xv) The factors in Williams are largely directed to the reasonableness of a compromise inter partes. They are, however, also relevant to a consideration of the agreements reached with the insurance intervenors. The procedure should likewise be fair and reasonable "inter se". (xvi) An important consideration is whether group members were given timely notice of the critical elements so that they had an opportunity to take steps to protect their own position if they wished. Once appropriate notice is given, the absence of objections or other response action from group members is a relevant consideration in support of the settlement and all its elements (Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19 (Stone J) (Aristocrat); Abeyratne at [22]; Horsham at [15], [25). (xvii) Where a group member objects to the settlement, an important question is whether the objector is prepared to assume the role and risks of being lead plaintiff. It is easy for group members who face no adverse costs risk to want a plaintiff to fight to the very end. The weight to be given to objections will diminish where the objector is unwilling or unable to take on all of the economic and other burdens which the plaintiff otherwise bears (Wong v Silkfield [2000] FCA 1421 at [24] - [30] (Spender J)). [23] The effect of those considerations is that the proposed settlement must be fair and reasonable and in the interests of all group members who will be bound by the settlement. In this context group members, who are not clients of Maddens, are not directly represented. It is their interests in particular which the Court, in an application of the present kind, is concerned to ensure are addressed fairly, vis-a-vis the plaintiff and other group members and having regard to the overall merits of the claims made on their behalf in the action. [24] Notwithstanding the reservations expressed by Jessup J in Darwalla regarding lists of criteria, the factors identified by Goldberg J in Williams as typically bearing on an assessment of a proposed settlement provide a useful framework. Those factors are: (a) The amount offered to each group member. (b) The prospects of success in the proceeding. (c) The likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer. (d) The terms of advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding. (e) The likely duration and cost of the proceeding if continued to judgment. (f) The attitude of group members to the settlement.
10. It will be observed from [22(xvi)] above, that notice would need to be given to all members of the open class before any settlement could be approved. In the circumstances, that makes the 28-day period in the Offer of Compromise unreasonable in itself.
11. Even assuming notice was given to all the class members, and the matter was brought before the Court in the 28-day period, I consider that the Court would not have approved the settlement. Such approval would have been in the face of the judgment of Campbell J in Margaret Ritchie at [48-[49], [53]-[54] and [63]-[66], and without any further evidence to the time of the service of the Offer of Compromise to throw doubt on those conclusions, albeit they were conclusions in the context of a s 5 application. It would have left all members of the class with nothing, and only the plaintiff with the benefit of not being liable for CGU's costs if CGU was ultimately successful.
12. In my opinion r 42.15A should not operate to result in CGU receiving indemnity costs from the date of the Offer of Compromise.
13. The plaintiff has been successful in resisting the second defendant's notice of motion seeking indemnity costs, and has been largely successful on her own notice of motion. In those circumstances the second defendant should pay the plaintiff's costs of those motions.

Conclusion

1. Accordingly, I make the following orders:
2. I vary the costs order I made on 31 March 2022 as follows: (a) I make a declaration that second defendant is required to pay the plaintiff's costs incurred in preparation for the purpose of proving items 2,3 and 4 of the plaintiff's Notice to Admit Facts dated 15 June 2020 until 2 June 2021, such costs to be assessed on an indemnity basis pursuant to r 42.8(3) of the Uniform Civil Procedure Rules 2005 (NSW); (b) Subject to (a) above, I order the plaintiff to pay 60% of the second defendant's costs.
3. I order the second defendant to pay the plaintiff's costs of the plaintiff's notice of motion filed 13 April 2022 and of the second defendant's notice of motion filed 14 April 2022.

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. Decision last updated: 30 June 2022