Roads and Traffic Authority of New South Wales, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer

CATCHWORDS: Costs - plaintiff's application for Bullock order - application made after judgment and costs orders - costs orders entered - whether power to vary costs orders by Bullock order - power under slip rule - whether order should be made - no conduct making it fair to impose the additional costs on the unsuccessful defendants. ND

Almeida v Universal Die Works Pty Ltd (No 2) [2001] NSWCA 156; Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 3000; Bailey v Marinoff (1971) 125 CLR 529; Bullock v London General Omnibus Co (1907) 1 KB 264; Commonwealth of Australia v McCormack (1984) 155 CLR 273; De L v The Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207; DJL v The Central Authority (2000) 201 CLR 226; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; CASES CITED: Gamser Co Ltd v Nominal Defendant (1977) 136 CLR 145; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1983) 151 CLR 590; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; New South Wales Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8; Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 659; Sved v Municipality of Woollahra (1998) NSW Con R 55-852; Timbarra Protection Coalition Incorporated v Ross Mining Ltd [1999] NSWCA 335; TJM Products Pty Ltd v A & P Tyres Pty Ltd (1987) FCR 390; re Wakim; ex parte McNally (1999) 198 CLR 511.

Roads and Traffic Authority of NSW (Appellant in No 40217/02) Council of the Shire of Evans (Appellant in No 40102/02) PARTIES: Pioneer Road Services Pty Ltd (Appellant in No 40133/02) Lisa Denise Palmer (Respondent)

D Caffrey (Solr) Roads and Traffic Authority of New South Wales M E Down (Solr) - Council of the Shire of Evans COUNSEL: P Braham - Pioneer Road Services Pty Ltd T J Abbott (Solr) - Respondent

I V Knight - Roads and Traffic Authority of New South Wales Phillips Fox - Council of the Shire of Evans SOLICITORS: Corrs Chambers Westgarth - Pioneer Road Services Pty Limited Walsh & Blair, Wagga Wagga - Palmer

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40217/02 CA 40102/02 CA 40133/02 SC 20339/98

SPIGELMAN CJ HANDLEY JA GILES JA

Tuesday 10 May 2005 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES, COUNCIL OF THE SHIRE OF EVANS & PIONEER ROAD SERVICES PTY LTD v PALMER (No 2) Judgment 1 SPIGELMAN CJ: I agree with Giles JA. 2 HANDLEY JA: I agree with Giles JA. 3 GILES JA: Judgment in these appeals was delivered on 28 March 2003. The plaintiff applied for variation of the costs orders then made by inclusion of an order in the nature of a Bullock order.

Circumstances 4 The plaintiff was severely injured when her car went off the road. She sued the RTA, the Council and Pioneer. Wood CJ at CL held that each of the defendants was liable and made an apportionment between them. Each of the defendants appealed, as against the plaintiff and amongst themselves. The RTA's appeal on liability was upheld. The appeals of the Council and Pioneer on liability and quantum were dismissed, and the apportionment between them was not changed. 5 This left or brought the costs orders -

(a) for the costs of the trial, that the Council and Pioneer pay the plaintiff's costs and the plaintiff pay the RTA's costs;

(b) for the costs of the appeals, that the plaintiff, the Council and Pioneer pay the RTA's costs of its appeal and the Council and Pioneer pay the costs of the plaintiff and the RTA of their appeals. 6 The orders of this Court, including the costs orders, were entered on 7 July 2003. The copy of the formal orders in evidence shows that the entry was obtained by the plaintiff. 7 The plaintiff made known that she wished to apply for an order whereby the costs payable by her to the Council and Pioneer included the costs payable by her to the RTA. A transcript of the occasion of delivery of judgment is not available, and it is not clear when this was made known, but there was evidence to the effect that shortly after the delivery of judgment the plaintiff's counsel or his clerk approached the Associate to the Chief Justice and was informed that any argument in relation to a Bullock order should be the subject of written submissions. 8 The plaintiff's solicitor gave evidence that written submissions had been "provided to the other parties", and that they were forwarded to the RTA on 11 April 2003. The Council's written submissions asserted that no submissions were sent to it. Pioneer was silent on the point. The submissions were not filed or otherwise provided to the Court. The plaintiff's solicitor said that this was by oversight. 9 By a notice of motion filed on 11 November 2004, accompanied by the solicitor's affidavit, the plaintiff applied for an order that the matter be restored to the list. The plaintiff's solicitor said that no intermediate action was taken because he believed that the submissions had been filed and that the Court was considering the matter. It is difficult to accept that the failure to follow up was due to tolerance rather than further oversight. 10 The notice of motion did not formally apply for an order varying the costs orders. Expanded written submissions were filed by the plaintiff on 18 January 2005, to which was attached, without mention in the submissions, an amended notice of motion applying for a costs order to the effect earlier described. 11 The RTA filed written submissions on 11 February 2005, essentially neutral on that matter. Pioneer filed written submissions on 11 March 2005 and the Council filed written submissions and an affidavit of its solicitor on 11 March 2005, both opposing the costs order. No submissions or evidence in reply were filed by the plaintiff.

Parties 12 The submissions of the RTA and Pioneer stated that the plaintiff had died in early 2004. In the absence of correction, that should be accepted. Remarkably, no mention of it was made by the plaintiff's solicitor. No application was made to substitute the plaintiff's legal personal representative as party to the proceedings. That should have been done before the plaintiff's application for the costs order was revived, and should be done so that the application can be determined.

Power 13 The plaintiff submitted that, notwithstanding the earlier orders as to costs and the delay since March 2003, there was power to make an order varying the costs orders. She referred to Pt 52A r 5 of the Rules and New South Wales Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8. Pioneer conceded that the Court "retains the power to make a costs order in these proceedings". But the Council submitted that the entry of judgment precluded variation of the costs orders. 14 The Rules provide for the entry of judgments and orders. Part 41 r 11 provides that, with exceptions not presently relevant, any judgment or order shall be entered. Part 41 r 13 provides for the manner of entry. The rules were taken up by the plaintiff in obtaining entry of, amongst other orders, the costs orders. 15 As a general rule, the Court has no power to vary a judgment or order once it has been entered. This is based on the principle of finality of litigation. In Bailey v Marinoff (1971) 125 CLR 529 at 530 Barwick CJ said - "Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed." 16 See also Gamser v Nominal Defendant (1977) 136 CLR 145 at 147, 154; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 279; DJL v The Central Authority (2000) 201 CLR 226 at 245; Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146 at 151-2. 17 Part 52A r 5 provides that the Court may, in any proceedings, exercise its powers and discretions as to costs at any stage in the proceedings or after the conclusion of the proceedings. The rule is relevantly concerned with costs orders after the substantive decision has been given, and must be subject to finality from entry of costs orders already made. New South Wales Insurance Ministerial Corporation v Edkins relevantly held that a judge was not functus officio after making costs orders if, although unknown to the judge, a costs argument remained to be heard. There was no question of entry of judgment. 18 Thus the plaintiff did not identify a source of power after the entry of the costs orders. It is curious: the note to Pt 52A r 5 in Ritchie's Supreme Court Procedure NSW states that costs orders may be made or reconsidered "at any time before the entry of judgment". Was there further oversight? Yet the plaintiff did not respond to the Council's submission that the entry of the orders precluded their variation. 19 By Pt 40 r 9(1) the Court may set aside a judgment, and by Pt 40 r 9(3) the Court may set aside or vary an order, where notice of motion for the setting aside or variation is filed before entry of the judgment or order. This recognises the finality of entry of a judgment or order, and mollifies it by allowing reconsideration after entry provided the notice of motion was filed prior to entry. In the present case the wish to apply for the costs order was informally made known prior to the entry of the orders, although it is not clear that it was made known at least to the Council. But no notice of motion was filed until after the orders had been entered (and strictly no notice of motion for variation has yet been filed). 20 By Pt 40 r 9(4), in addition to its powers under the subrules earlier mentioned - " … the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief." 21 This provides a limited exception. The costs orders made on 28 March 2003, however, determined claims for relief, the relief claimed being orders disposing of the costs of the trial and of the appeals. The subrule does not avail the plaintiff. 22 By Pt 40 r 9(5), nothing in the rule affects any other power of the Court to set aside or vary a judgment or order. An order may be set aside notwithstanding its entry if the entry was an abuse of process, brought about to preclude variation or setting aside of the order: TJM Products Pty Ltd v A & P Tyres Pty Ltd (1987) FCR 390. These costs orders were entered at the request of the plaintiff. 23 A source of power lay, however in Pt 20 r 10(1) (the slip rule) - "10(1) Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a minute of a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 24 This or equivalent rules have been held to permit applications for variations of orders where the mistake or error lay in a party's failure to advert to a matter at the time of the hearing; Toohey J said in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1988) 77 ALR 190 at 191 - "In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order was pronounced … " 25 Applications under a slip rule have been entertained to vary orders by inclusion of interest in a judgment (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; Gould v Vaggelas (1983) 157 CLR 271), ordering repayment of the judgment sum (The Commonwealth of Australia v McCormack (1984) 155 CLR 273; Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991) 27 NSWLR 659) and making an order for costs (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd). This has been so "regardless of whether the order has been drawn up, passed and entered" (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) at 595; see also Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) at 661). 26 The plaintiff did not apply or foreshadow an application for a Bullock order at the hearing of the appeals. No explanation for her failure to do so was provided. I am prepared to infer that it was overlooked, perhaps because there was a number of possible outcomes of the appeals. The slip rule is available.

Exercise of power 27 The Council submitted that, if there was power, the plaintiff should not be permitted to invoke it. Its solicitor gave evidence that in April 2004 it negotiated with the plaintiff and Pioneer as to costs, that agreement was reached on an amount payable to the plaintiff by way of costs and on the sharing of that amount equally between the Council and Pioneer, and that due to the failure of the Council's insurer it obtained a grant and loan as a "rescue package" from the New South Wales government to pay its liabilities to the plaintiff which was finalised in approximately October 2004. The Council said that the plaintiff had the opportunity at the trial and the appeal to make submissions as to a Bullock order, but failed to do so, and that she could not now apply for the order, relying on Timbarra Protection Coalition Incorporated v Ross Mining Ltd [1999] NSWCA 335; it also said that there was an issue estoppel against her doing so, referring to re Wakim; ex parte McNally (1999) 198 CLR 511 at [161]. 28 The plaintiff did not respond to these submissions. It is not clear how the solicitor's evidence became relevant. It is not easy to see how there could have been negotiations of the kind described without the plaintiff's wish to have a Bullock order becoming know, if it was not already known. The Council did not say that it had acted in the belief that its costs burden could not be increased, so that some form of estoppel by representation came into play. 29 Timbarra Protection Coalition Incorporated v Ross Mining Ltd was a different case, involving disapproval of argument on a substantive matter, albeit going to costs, which had not been raised in the appeal and the evidence for which had not been included in the appeal papers. No determination of an issue of fact or law stands in the plaintiff's path, and the passage in re Wakim; ex parte McNally does not make out the issue estoppel. In the uncertain state of facts, I prefer not to express a view, one way or the other, upon the plaintiff's ability to invoke the power. It is not necessary to do so.

Making a Bullock order 30 By a Bullock order, from Bullock v London General Omnibus Co (1907) 1 KB 264, a plaintiff who has brought proceedings against two defendants, and has succeeded against one but failed against the other, may obtain an order that the unsuccessful defendant pay the costs the plaintiff has been ordered to pay to the successful defendant. Many forms of words have been used to explain when the order will be appropriate. In Sved v Council of the Municipality of Woollahra (1998) NSW Con R 55-852 at 55,605 I said - "It is not sufficient for the making of a Bullock order that it was reasonable for the plaintiff to bring the proceedings against both defendants, although sometimes the condition for making a Bullock order is stated in that way (eg Johnsons Tyne Foundry, Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 556; Altamura v Victorian Railways Commissioners (1974) VR 33 at 35). One statement of principle is that the order may be made where the costs have been reasonably and properly incurred by the plaintiff as between it and the unsuccessful defendant (eg Johnsons Tyne Foundry Pty Ltd v Maffra Corporation at 572-3; Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA Pty Ltd (1984) 157 CLR 149 at 163; Gould v Vaggelas (1984) 157 CLR 215 at 247, 229); it has also been said that the conduct of the unsuccessful defendant must have been such as to make it fair to impose some liability on it for the costs of the successful defendant, or that the conduct of the unsuccessful defendant must show that the joinder of the successful defendant was reasonable and proper to ensure of recovery of the damages sought ( Steppke v National Capital Development Commission (1978) ACTR 23 at 30-31; Gould v Vaggelas at 229; Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 at 7-8, 15; Lackersteen v Jones (No 2) (1988) 93 FLR 442 at 449). The difference in formulations is probably more apparent than real, as 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. Such conduct was found in Lackersteen v Jones (No 2) in the unsuccessful defendant denying the authority of its agent whereby the plaintiff joined the agent who became the successful defendant, and more widely has been found in the unsuccessful defendant telling that the plaintiff in one way or another that it should look to the successful defendant for its remedy ( Altamura v Victorian Railways Commissioners ; Gould v Vaggelas ; Fennell v Supervision & Engineering Services Holdings Pty Ltd )." 31 In Almeida v Universal Die Works Pty Ltd (No 2) [2001] NSWCA 156 Priestley JA accepted a wide view of relevant conduct of the unsuccessful defendant, saying (at [8]) that "any conduct by the defendant or state of affairs in which the defendant is an integral part which makes it fair and reasonable for other parties to be joined as defendants will be relevant to deciding on fair costs orders". In that case all three defendants were under common control, and his Honour thought it relevant that the unsuccessful defendant had so arranged its affairs that the plaintiff was uncertain who was the occupier or head contractor in charge of work on the site on which the injury occurred. Santow JA preferred to regard the arrangement of affairs as background to the conduct of the unsuccessful defendant in denying that it was the head contractor, that conduct causing a rational plaintiff to join the other defendants. 32 The plaintiff's car ran off the road at a place where re-sealing work was being undertaken. The work was carried out by Pioneer under contract to the Council, with funding from the RTA pursuant to a standing agreement for the provision of maintenance services on a network of roads, including the road in question. The car went off the road because the plaintiff was travelling too fast for adhesion in the gravel left on the road during the re-sealing. Leaving aside the question of a guardrail which in the end did not matter, the breaches of a duty of care lay in leaving uncovered a 75 km/h speed sign, inappropriate even in normal conditions, and failing by proper signage to warn of the gravel on the road or if the signage was inadequate to remove the gravel or replace the speed sign. 33 The plaintiff sued the RTA as road authority. Wood CJ at CL held that its liability was wholly vicarious. It was held on appeal that the RTA did not owe a duty of care to the plaintiff, because (per Spigelman CJ at [154]) - "154 In my opinion, the terms and conditions of RTA funding, detailed as they are, do not involve the RTA in the actual carrying out of the work. The RTA is not an authority which does "carry out works or repairs" upon the road here in issue (cf Brodie at [150]). Nor did it have "physical control over the object or structure which is the source of the risk of harm" ( Brodie at [103]; Barclay Oysters at [151]), i.e. the combination of gravel and the 75 km/h sign. The RTA did not 'exercise control' over this 'direct source of harm' to drivers ( Barclay Oysters at [152]). The relationship between the RTA and the Plaintiff was 'indirect … it [was] mediated by intervening conduct' on the part of the Council and Pioneer ( Barclay Oysters at [153]; see also at [154]). The RTA did not, in my opinion, control in a sufficiently proximate way the 'relevant risk of harm' ( Barclay Oysters at [150] and [152]). The carrying out of the works extending to the installation of appropriate speed advisory signs in the circumstances, was not a matter which it ever had the capacity to control under the arrangements in place. The RTA did not, therefore, owe a duty of care to the Plaintiff with respect to the gravel and the 75 km/h sign." 34 The plaintiff relied on the wide view of conduct in Almeida v Universal Die Works Pty Ltd (No 2). She said that it was an RTA road, the work was funded by the RTA, the Council and Pioneer were aware of the arrangements by which control over the road works were to be judged, but the Council and Pioneer denied liability to the plaintiff and made no admissions as to control. The Council and Pioneer each cross-claimed for contribution, and at least on appeal the Council submitted that the RTA was liable to the exclusion of the Council. In these circumstances, it was said, there was conduct of the Council and Pioneer which made it not only proper but essential for the plaintiff to join the RTA as defendant and maintain her claim against it. 35 It may have been reasonable for the plaintiff in her own interests to join the RTA as a defendant, but I do not think that there was conduct which made it just that the Council, and still less Pioneer, pay the costs payable by the plaintiff to the RTA. Neither the Council nor Pioneer created any circumstances of uncertainty as to who was the proper defendant. They were not obliged to concede liability or make admissions in order to remove the RTA from contention, there being a respectable argument that the RTA was liable, and there is no reason to think that short of effective capitulation by the Council and Pioneer the plaintiff would not have maintained her claim against the RTA. In my opinion, conduct has not been shown such as to make it fair to impose on the Council and Pioneer liability for the costs of the RTA. 36 Accordingly, I do not think that the costs order for which the plaintiff applies should be made.

Orders 37 The plaintiff's solicitors should be directed to take steps to substitute the plaintiff's legal personal representative as party to the proceedings; and subject thereto the plaintiff should have leave to amend the notice of motion to the form of amended notice of motion attached to the written submissions and the amended notice of motion should be dismissed with costs. **********

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