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[2026] NSWSC 866
Supreme Court of NSW
2026-07-23
Cavanagh J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ward v Endeavour Coal Pty Limited (No 2) [2026] NSWSC 866
Hearing dates: 10 June 2026
Decision date: 23 July 2026
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) The plaintiff’s motion is dismissed.
(2) The plaintiff is to pay the second defendant’s costs of the motion.
(3) The orders I made on 22 May 2026 are set aside.
(4) In lieu thereof, I make the following orders:
Catchwords: COSTS — party/party costs — orders when proceedings involve multiple parties — Bullock and Sanderson orders — where plaintiff successful against one defendant but unsuccessful against another — where plaintiff seeks Sanderson order — whether unsuccessful defendant should be ordered to pay costs payable by plaintiff to the successful defendant — whether plaintiff should be ordered to pay costs of the successful defendant
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Bullock v London General Omnibus Co [1907] 1 KB 264
Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250
Dominello v Dominello (No 2) [2009] NSWCA 257
Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75
Lackersteen v Jones (No 2) (1988) 93 FLR 442; [1988] NTSC 72
Moore v Keane [2026] NSWSC 565
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179
Ward v Endeavour Coal Pty Limited [2026] NSWSC 557
Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370
Category: Costs
Parties: David Ward (Plaintiff)
Endeavour Coal Pty Limited (First Defendant)
Illawarra Coal Holdings Pty Limited (Second Defendant) (Cross-Claimant)
WorkPac Mining Pty Limited (Third Defendant) (First Cross-Defendant)
WorkPac Pty Limited (Second Cross-Defendant)
Representation: Counsel:
R Sheldon SC with E Welsh (Plaintiff)
H Pararajasingham (Second Defendant and Cross-Claimant)
L Moussa (Third Defendant and Cross-Defendants)
Solicitors:
Brydens Lawyers (Plaintiff)
Moray & Agnew (Second Defendant and Cross-Claimant)
Wotton Kearney (Third Defendant and Cross-Defendants)
File Number(s): 2022/378340
“(1) Judgment for the plaintiff against the second defendant in the sum of $3,588,174.17.
(2) Judgment for the third defendant against the plaintiff.
(3) The first cross-claim dismissed.
(4) The second defendant is to pay the plaintiff’s costs.
(5) The plaintiff is to pay the third defendant’s costs.”
The effect of my judgment was that the plaintiff succeeded against the second defendant, but not against the third defendant.
Pursuant to a notice of motion filed on 4 June 2026, the plaintiff seeks to vary the costs orders, in effect, seeking an order that the second defendant pay the third defendant’s costs, as well as the third defendant’s costs in relation to the first cross-claim (an order in accordance with Sanderson v Blyth Theatre Co [1903] 2 KB 533 (“a Sanderson order”)). The third defendant also filed a motion dated 4 June 2026 seeking to vary the orders for costs on the first-cross claim.
However, subsequent to the hearing of the motions, I received consent orders between the defendants resolving the issues on the cross claims. I will make orders in accordance with those consent orders. It is also necessary to amend the judgment sum to reflect a credit for workers compensation payments received by the plaintiff.
As set out in my judgment of 22 May 2026, the reason that the plaintiff succeeded only against the second defendant was that I was satisfied that it was the second defendant and not the third defendant who should be vicariously liable for the conduct of the driver of the specialised mining vehicle (“SMV”) in which the plaintiff was a passenger at the time of the incident the subject of the proceedings. The third defendant was not otherwise negligent.
Generally, costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. In proceedings involving multiple parties, a Sanderson order requires an unsuccessful defendant to pay the costs of a successful defendant, thereby allowing the plaintiff to avoid liability for costs to a successful defendant. A Sanderson order differs from a Bullock order (see Bullock v London General Omnibus Co [1907] 1 KB 264), although the applicable principles are the same: Moore v Keane [2026] NSWSC 565 at [9] (Harrison AJ).
The plaintiff must establish that it was both reasonable for the plaintiff to sue the successful defendant and there that there was something about the conduct of the unsuccessful defendant, such as to make it fair to impose some liability on it for the costs of the successful defendant: Gould v Vaggelas (1985) 157 CLR 215 at 229-230; [1985] HCA 75 (Gibbs CJ) (“Gould v Vaggelas”).
The conduct of an unsuccessful defendant need not be misconduct but must be conduct sufficient to make it fair to visit liability upon the unsuccessful defendant: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [29]. A denial of liability would not be sufficient: Dominello v Dominello (No 2) [2009] NSWCA 257 at [15]-[27]. To attract a Sanderson order, it is not necessary that a defendant encouraged or induced the plaintiff to join another defendant, although it may be an important factor: see Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 at [229] (Leeming JA, with whom Macfarlan JA and Sackville AJA agreed). Instead, the focus of the inquiry is the two-step process as identified by Gibbs CJ in Gould v Vaggelas, being:
That it was reasonable for the plaintiff to have brought proceedings against the second defendant; and
That there must have been some conduct on the part of the unsuccessful defendant which would make it fair to impose liability on it for the costs of the successful defendant.
In Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 (“Stevedoring v Gibson”) at [128], the Court of Appeal (Mason P, with whom Stein and Heydon JJA agreed) quoted with approval the observations of Asche CJ about the making of Sanderson orders in Lackersteen v Jones (No 2) (1988) 93 FLR 442; [1988] NTSC 72, where his Honour said, at 449:
“1. It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant.
- The causes of action against two or more defendants need not be the same but they must be substantially connected or dependent the one on the other.
- While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion.
- Finally, in considering whether to make such an order, the court should, in the exercise of its discretion balance overall two considerations of policy: the first, that an unnecessary multiplicity of actions should not be forced on litigants, so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; secondly, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful.”
There can be no doubt that it was reasonable for the plaintiff to have sued the third defendant. The plaintiff sustained injury when travelling as a passenger in a SMV driven by an employee of the third defendant. At the time, the plaintiff was working in the Appin Colliery and was an employee of the second defendant. The third defendant asserted, and I accepted, that although the driver of the SMV was employed by it, the second defendant was the employer pro hac vice and was the party vicariously liable for the conduct of the driver. As there can be no dual vicarious liability in Australia (Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [23]-[33]), only the one defendant could be vicariously liable for the conduct of the driver of the SMV.
Whilst the plaintiff pursued a system-type claim against both the second and third defendants, it also asserted that the driver was guilty of negligence in the way in which he drove and controlled the SMV. There was initially some uncertainty as to the relationship between the driver and the parties and who was responsible for the driver but it must be that once the plaintiff ascertained that the third defendant employed the driver and in circumstances in which the second defendant denied liability to the plaintiff, it was reasonable for the plaintiff to have joined the third defendant.
The question of whether there was something in the conduct of the unsuccessful defendant, so as to make it fair to impose some liability on it for the costs of the successful defendant, is more nuanced. Further, as I have just highlighted (see Stevedoring v Gibson), in considering whether to exercise the discretion to make such an order, the court must balance two considerations, being the importance of the plaintiff not losing the fruits of his victory in paying costs, and the principle that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful.
The plaintiff submits that it is fair to make a Sanderson order in this case, because the second defendant chose to arrange its business activities in such a way that it had a workforce, including the driver of the SMV, for whom it was not legally responsible as an employer, albeit it is clear that the driver was working as part of the second defendant’s system.
Further, the plaintiff submits that the second defendant ran an affirmative case that it was not responsible for the harm to the plaintiff, either as to the operation of the system or the training of the driver. The plaintiff submits that that left the plaintiff no choice but to join the third defendant to the proceedings and it could not realistically be expected that the plaintiff would take the risk of running the case solely against the second defendant.
Further, it is submitted that it was always in the power of the second defendant to accept its liability and then it would have been unnecessary to join the third defendant. All these matters are factually correct but they are really directed at the question of whether it was reasonable for the plaintiff to have joined the third defendant. That is only one of the pre-conditions for the making of a Sanderson order. I have already accepted that it was reasonable for the plaintiff to have joined the third defendant.
The second defendant could have admitted liability, but its defence was not unarguable or completely without merit. There were factual and legal issues to be determined. The plaintiff did not succeed on all of his allegations against the second defendant.
However, I do not accept the submission that it would be fair to impose a Sanderson order on the second defendant because the problem stems from the way the second defendant arranged its business. It would be necessary for the plaintiff to establish that the second defendant had this type of litigation in mind when arranging its business for that submission to have any substance.
The Court is assessing the conduct of the second defendant in response to the plaintiff’s claim and the way in which it conducted the litigation. Active encouragement to a plaintiff to join another party may, in most circumstances, be a good example of the type of conduct which may warrant a Sanderson order.
Whilst again, there may be some dispute as to the meaning and intent of the correspondence between the parties, in my view, the second defendant did not positively encourage the plaintiff to join the third defendant. It might have provided information and even explained why it maintained its denial of liability, but this is not a case in which those representing the second defendant were urging the plaintiff to join a defendant which was ultimately successful.
It is important that the second condition set out in Gould v Vaggelas be given appropriate weight. The parties accepted that in undertaking the assessment it would be necessary to find “something more” in the conduct of the second defendant than merely a denial of liability.
I am not satisfied that, in the particular circumstances of this case and having regard to the issues and the exchanges between the parties during the course of the litigation, I should exercise my discretion to make the order sought by the plaintiff. I must balance the importance of ensuring the plaintiff obtains the fruits of his victory with the need to ensure that an unsuccessful defendant is not unnecessarily required to pay more than one set of costs.
Having regard to the amount of the judgment entered in favour of the plaintiff, it could not be said that any liability to pay the third defendant’s costs would deprive the plaintiff of the fruits of his victory.
In circumstances in which the plaintiff is unable to point to that type of positive encouragement by the second defendant to the plaintiff to join the third defendant, I am not satisfied that the order sought by the plaintiff should be made.
(1) The plaintiff’s motion is dismissed.
(2) The plaintiff is to pay the second defendant’s costs of the motion.
(3) The orders I made on 22 May 2026 are set aside.
(4) In lieu thereof, I make the following orders:
Judgment for the plaintiff against the second defendant in the sum of $3,588,174.17, less repayment of applicable compensation payments in the amount of $708,816.29.
A partial stay of execution is granted in the sum of $575,871.58.
Judgment for the third defendant against the plaintiff.
The second defendant is to pay the plaintiff’s costs.
The plaintiff is to pay the third defendant’s costs.
All cross-claims are dismissed.
The second defendant is to pay the third defendant’s costs of the first cross-claim dated 4 March 2025, as amended, as agreed or assessed.
The second defendant is to pay the second cross-defendant’s costs of the first cross-claim, as amended, as agreed or assessed.
Otherwise, there be no order as to the costs of the cross-claims.
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Ward
Endeavour Coal Pty Limited (No 2)
[2026] NSWSC 565
[2026] NSWSC 557
(2013) 85 NSWLR 335
(1985) 157 CLR 215
(1988) 93 FLR 442
(2016) 93 NSWLR 561