District Court New South Wales Medium Neutral Citation: Alam v Giampietro trading as Legal & Company Solicitors [2023] NSWDC 454 Hearing dates: 12 October 2023 Date of orders: 27 October 2023 Decision date: 27 October 2023 Jurisdiction: Civil Before: Waugh SC DCJ Decision: (1) The plaintiffs are to pay the second defendant's costs of the proceeding. (2) The plaintiffs are to pay the first and second defendant's costs of the applications and hearings before me. (3) The motions filed by the second defendant on 30 May and the third plaintiff on 17 July 2023 are otherwise dismissed. (4) The exhibits may be returned. Catchwords: COSTS – Party/Party – Orders when proceedings involve multiple parties – Bullock and Sanderson orders Legislation Cited: Civil Procedure Act 2005 s98 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Alam v Giampietro [2020] NSWDC 471 Bullock v London General Omnibus Company [1907] 1 KB 264 Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 Dominello v Dominello; Dominello v The Nominal Defendant [No 2] [2009] NSWCA 257 Gould v Vaggelas [1985] HCA 75 ; 157 CLR 215 Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 National Transport Insurance by its Manager NTI Ltd v Zhang (2016) NSWLR 561 Northern Territory v Sangare (2019) 265 CLR 164 Royal v El Ali (No 3) [2016] FCA 1573 Sanderson v Blyth Theatre Company [1903] 2 KB 533 Sze Tu v Lowe [2015] NSWCA 91 Texts Cited: Nil Category: Costs Parties: Muhammad Mahmud Alam (First Plaintiff) Saqiba Sattar (Second Plaintiff) Tamara Jayne Goodwin (Third Plaintiff) Leonardo Giampietro trading as Legal & Company Solicitors (First Defendant) Quang Nguyen (Second Defendant) Representation: Counsel: Mr D Yazdani (First Plaintiff) Mr P Bates (Second Plaintiff) Mr A Katsoulas (Third Plaintiff) Mr B Alder, Solicitor (First Defendant) Mr R Carey (Second Defendant) Solicitors: Thurlow Fisher (First Plaintiff) City Lawyers & Consultants (Second Plaintiff) Glass Goodwin (Third Plaintiff) Moray & Agnew (First Defendant) Spark Helmore (Second Defendant) File Number(s): 2017/61840 Publication restriction: Nil Judgment 1. These proceedings were heard by his Honour Judge P Taylor SC over 13 days in 2019 and 2020. His Honour gave a written judgement and made final orders disposing of all issues in the proceedings apart from costs on 21 August 2020: Alam v Giampietro [2020] NSWDC 471 ("Judgment No.1"). 2. The plaintiffs had sued their former solicitor (the first defendant) and their former barrister (the second defendant) for professional negligence when acting for them in connection with prior litigation against their insurer, QBE, arising from fire damage to their home. For the reasons set out in Judgment No.1, Judge Taylor made the following orders: 1. Judgment in favour of the first plaintiff, Mr Alam, and second plaintiff, Mrs Saqiba Sattar, against the first defendant in the sum of $165,693.65. 2. Judgment for the second defendant against the plaintiffs. 3. Proceedings by the third plaintiff, Mrs Qamar Sattar, are dismissed. 1. Subsequently, on 3 September 2020, His Honour made the following orders by consent: 1. The first defendant is to pay the plaintiffs the sum of $3,000.00, on account of the disbursements incurred in the proceedings by the plaintiffs, such sum to be paid within 21 days of the date of these orders. 2. Vacate the previous costs orders made in favour of the first defendant. 3. Otherwise, there be no order as to costs as between the plaintiffs and the first defendant. 1. The parties now ask the court to make further orders as to the costs of the proceedings. Ostensibly the matter comes before me as a result of two notices of motion having been filed by the parties: one filed for the second defendant on 30 May 2023 and another filed for the third plaintiff on 17 July 2023. 2. As Judge Taylor explained at the commencement of his judgment, the first plaintiff and the second plaintiff were married to one another, and the third plaintiff was the second plaintiff's mother. His Honour described all three plaintiffs as "the Alam family". As his Honour also explained at the commencement of his judgment, the plaintiffs were self-represented. His Honour recorded that the first plaintiff attended, sometimes with the second plaintiff, and that the proceedings were, by leave (which was unopposed), conducted on behalf of the Alam family by Ms Qamar Sattar, the third plaintiff. His Honour recorded that sadly, after the evidence and written submissions but before the conclusion of final oral submissions, the third plaintiff died; that the first plaintiff and the second plaintiff desired for the proceedings to continue; and, by consent, His Honour made an order under rule 7.10(2)(a) of the Uniform Civil Procedure Rules, 2005 enabling this to occur without the estate of the third plaintiff being represented. Rule 7.10(3) provides that any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings. 3. By the time the matter came before me, a divorce order had been made on 23 February 2022 in respect of the first and second plaintiff's marriage, Letters of Administration of the estate of the third plaintiff had been granted on 4 May 2023 to Tamara Jayne Goodwin, an order was made by consent on 23 June 2023 substituting Ms Goodwin as the third plaintiff in these proceedings, and his Honour Judge Taylor had retired. 4. In the hope of avoiding confusion, in the balance of these reasons I will refer to Ms Goodwin as the third plaintiff and to the late Ms Qamar Sattar as either the deceased or the second plaintiff's mother. 5. On the applications before me, the first plaintiff was represented by Mr Yazdani of counsel, the second plaintiff by Mr Bates of counsel, the third plaintiff by Mr Katsoulas of counsel, the first defendant by Mr Alder solicitor, and the second defendant by Mr Carey of counsel. 6. Notwithstanding that his Honour Judge Taylor had received some written and oral submissions about costs from the first and second defendants and the first and second plaintiffs in June 2021, the positions of the parties were clarified at the commencement of the hearing before me. In summary: 1. The second defendant sought an order that the plaintiffs (that is all three plaintiffs) pay the second defendant's costs of the proceedings. 2. The first plaintiff sought a Sanderson order to the effect that the first defendant pay any costs order made against the plaintiffs in favour of the second defendant. In the alternative, in the event that the court does not make a Sanderson order, the first plaintiff asked that the third plaintiff be ordered to bear the burden of any costs order made against the plaintiffs. 3. The second plaintiff supported the position the first plaintiff had adopted, but with two qualifications. The first qualification was that in the event that the plaintiffs are ordered to pay costs, a special order should be made which would give the Supreme Court the ability to re-apportion or to apportion any costs order in favour of the second defendant as between the plaintiffs individually. The second qualification was that in the event the court makes an order against the second plaintiff, then the order should not be enforceable or should be stayed pending the resolution of proceedings currently before the Supreme Court in relation to the deceased's estate. 4. The third plaintiff supported the first plaintiff's application for a Sanderson order. However, in the event the court does not make that order the third plaintiff submitted that any orders in favour of the second defendant against the plaintiffs should be made against all three of them jointly and severally. 5. The first defendant opposed the making of any Sanderson order against him. 1. The position of the second defendant was straightforward. Mr Carey submitted that the second defendant had been entirely successful against all three plaintiffs, judgment having been given in his favour, and that costs should follow the event. No-one argued that the second defendant should not have his costs of the proceedings. 2. The first real question for determination therefore is whether the Court should make a Sanderson order against the first defendant for those costs. Legal principles - Sanderson orders 1. Sanderson orders take their name from Sanderson v Blyth Theatre Company [1903] 2 KB 533. Bullock orders are their close cousins, named after Bullock v London General Omnibus Company [1907] 1 KB 264. 2. Williams J described the two types of order as follows in Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 572: The appellant asks for what has come to be known as a Bullock order. This is an order which is sometimes made where a plaintiff joins two defendants and claims that one or other is liable jointly or in the alternative for the amount or part of the amount claimed. If the plaintiff succeeds against one defendant and fails against the other, the order relieves the plaintiff from having to bear the costs of the successful defendant either by ordering the unsuccessful defendant to pay to the plaintiff the costs which the plaintiff is ordered to pay to the successful defendant or alternatively, and this is the modern form of order, by ordering the unsuccessful defendant to pay the costs of the plaintiff and of the successful defendant. 1. A Sanderson order is what Williams J referred to as "the modern form of the order", although an order was not made in that form in Sanderson itself. 2. Sanderson and Bullock orders have been considered in a number of relatively recent decisions of the NSW Court of Appeal: Zhang v ROC Services (NSW) Pty Ltd; National Transport Insurance by its Manager NTI Ltd v Zhang (2016) NSWLR 561, Sze Tu v Lowe [2015] NSWCA 91, Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 and Dominello v Dominello; Dominello v The Nominal Defendant [No 2] [2009] NSWCA 257. 3. In Turano, the Court (Beazley, Hodgson & McColl JJA) summarised the circumstances in which either form of order will be made, at [15]: In determining whether it is fair to make such an order, two matters are usually considered to be relevant. First, it must have been reasonable for the plaintiff to have brought the proceedings against the successful defendant: see Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 per Gibbs CJ (at 230); Wilson J (Murphy J agreeing) (at 247); Brennan J (at 260); Lackersteen v Jones (No 2) (1988) 93 FLR 442 (at 449); Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 ; (2000) NSWCCR 417 (at [128]) per Mason P (Stein and Heydon JJA agreeing). … Secondly, there must be 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: Gould v Vaggelas (at 230; 247 and 260). 1. That passage was endorsed in Sze Tu, by Gleeson JA at [56] (Meagher and Barrett JJA agreeing), and in Zhang, by Leeming JA at [229] (Macfarlan JA and Sackville AJA agreeing). 2. In Sze Tu, Gleeson JA said at [57] that what constitutes relevant "conduct" of the unsuccessful defendant which makes it a proper exercise of discretion to make a Bullock order may be seen from Gould v Vaggelas [1985] HCA 75 ; 157 CLR 215 and the other cases referred to in Council of the City of Liverpool v Turano (No 2) at [16]–[22]. 3. What constitutes relevant conduct was also considered in Dominello, where Handley AJA (Beazley and Macfarlan JJA agreeing) reviewed the cases. Having set out the passage from the judgment of Gibbs CJ in Gould v Vaggelas at pages 229-230 earlier in his reasons, Handley AJA said at [19]-[20]: [19] The statement of principle of Gibbs CJ in Gould v Vaggelas … establishes that an order of the nature sought is not justified merely because the plaintiff acted reasonably in her own interests in suing both defendants. There must be something in the conduct of the unsuccessful defendant which makes it fair to impose this liability on it. This must be something more than a denial of liability which would be present in every case brought against two or more defendants. [20] That something more will typically involve a positive assertion, express or implied, that the relevant defendant is not liable because the other is. Parties' submissions 1. All parties filed written submissions and spoke to them. Counsel for the first plaintiff took the running on the plaintiffs' application for a Sanderson order. 2. It was submitted in the written submissions and developed orally that it was reasonable for the plaintiffs, being self-represented layman, without the benefit of any legal representation (and whose first language was not English), to commence proceedings against both the first and second defendants. It was submitted that in the eyes of the plaintiffs, the first and second defendants were one and the same, both being their legal representatives. It was submitted that given the plaintiffs were self-represented litigants, the denial of liability on the part of both defendants may reasonably leave in the plaintiffs' minds uncertainty as to which of the defendants will or should be held responsible for their loss. In oral submissions I was taken to a number of passages in the judgments of her Honour Judge Gibb in the prior litigation of the plaintiffs against the insurer, QBE. These included comments by her Honour in her costs decision that the second defendant (the barrister) was an unreliable witness on certain matters. I was also taken to comments in her Honour's substantive judgment about additional complexity being wrought by the conduct of the case including that in some respects the plaintiffs' written submissions had misstated the evidence, as had their oral submissions. I note in passing that it is difficult to see why these matters would not be caught by advocates immunity. Counsel for the second plaintiff filed short supplementary written submissions subsequent to the hearing. They do not appear to me to add to the submissions made by counsel for the first plaintiff at the hearing. 3. It was submitted in the first plaintiff's written submissions that in all the circumstances of the case the conduct of the unsuccessful defendant (the solicitor) was such as to make it fair to impose some liability on him for some or all of the costs of the successful defendant (the barrister). The conduct of the unsuccessful defendant which was identified was that it was the negligent failure of the first defendant to advise the first and second plaintiffs, which his Honour Judge Taylor ultimately found entitled them to an award of damages, that put the plaintiffs in the position of having to make the decision to commence an action for negligence against the first and second defendants. The submission seems to me to be saying little more than that the solicitor was found negligent on this aspect of the plaintiffs' claim against him. I must say that most, if not all, of the first plaintiff's oral submissions seemed to me to be addressed more to the question of whether or not it was reasonable for the plaintiffs to have commenced proceedings against the second defendant, rather than identifying conduct on the part of the first defendant which would make it fair to impose liability on him for the costs of the second defendant. 4. Mr Alder who appeared for the first defendant provided three sets of written submissions opposing the application for a Bullock or Sanderson order. One of those sets of submissions had been prepared by Ms Horvath of counsel and provided to Judge Taylor in June 2021. Those submissions focused upon the question of whether or not there was some conduct of the solicitor which made it fair to impose some liability on him for the costs of the successful barrister. It was submitted that there was no conduct of the solicitor which had been identified which caused the plaintiffs to join the barrister to the proceedings or to keep the barrister in the proceedings, but that it was clearly a decision taken by the plaintiffs. It was submitted that it was apparent from Judgment No.1 that the plaintiffs had brought a myriad of claims against each of the solicitor and the barrister, and the one and only claim on which they succeeded against the solicitor concerned his advice about the $250,000 offer, about which the court held that the solicitor was bound by findings made by Judge Gibb. It was submitted that the decision of Judge Gibb did not bind the barrister, and the court otherwise held that the claim against the barrister failed for the reasons set out in Judgment No.1 at paragraphs [117] to [118]. In the more recent submissions prepared by Mr Alder it was submitted that the plaintiff did not act reasonably in suing the barrister because his conduct was clearly protected by advocates immunity. It was submitted that this was a matter that the plaintiffs could have determined for themselves based on the information available to them before suing the barrister. This point was developed further orally at which time it was submitted that this was not a case where the plaintiffs were without information such that they could not resolve questions of fact before commencing proceedings. 5. It was submitted that this was a case where the plaintiffs had all of the information available to them before they commenced the case, which included the fact that advocates immunity would be available to both the barrister and the solicitor by way of defence to any professional negligence claim in connection with the prior litigation against QBE. It was submitted that the plaintiffs' conduct in joining the barrister was not reasonable because it was not a case in which the plaintiffs could succeed only against one of the defendants but had to sue both because they were uncertain who would ultimately be held liable. It was also submitted that to the extent the plaintiffs invited the court to consider their subjective factors (such as their lack of legal qualifications) in assessing the reasonableness of their conduct, these are not matters which can be held against the solicitor and can have no bearing on whether it is just for him to bear the plaintiffs' liability for the barrister's legal costs. My decision on Sanderson order application 1. In considering whether it was reasonable for the plaintiffs to have brought the proceedings against the second defendant it is relevant to understand just what case they brought against him. 2. According to Judge Taylor (paragraph [4] of Judgment No.1), the amended statement of claim contained about 164 assertions. It did not allege the ingredients of a coherent, readily discernible cause of action. There was no allegation in terms of conduct causing damage, but the parties accepted that the case involved claims of negligence and the trial proceeded on that basis. His Honour said that neither defendant applied to strike out the pleadings, although the form of the amended statement of claim indicated that such an application might have enjoyed good prospects in respect of substantial parts of it. 3. At paragraph [6] His Honour listed the issues between the parties for his determination. The first seven of those issues related to liability, only one of which related to the second defendant – namely issue seven which had the very general description "Are there any other wrongs of (the solicitor) or wrongs of (the barrister) which are pleaded and proved and which fall outside the advocates immunity doctrine." 4. The issue that the plaintiffs ultimately succeeded on was issue number three stated as "Did (the solicitor) fail properly to advise the plaintiffs about the insurer's settlement offers, and their prospects of success?". His Honour dealt with this issue in paragraphs 58 to 88 of Judgment No.1. The way the issue was stated and dealt with by his Honour indicates that this part of the plaintiffs' claim was not brought against the barrister in the alternative or at all. 5. In disposing of the case, the plaintiffs had brought against the barrister in five short paragraphs [116 – 120], his Honour commenced by saying the case maintained against the barrister failed because of the advocates immunity in the same way as it had failed against the solicitor. To the extent that a claim was made against the barrister in respect of the failed settlement, which claim was not articulated by his Honour, he found that the plaintiffs could not call in aid any findings of Judge Gibb as the barrister was not a party to the decision on costs and that would have seemed to be the occasion to make a claim against him in respect of costs. His Honour then said this at paragraph [118]: "But more importantly, there was no relevant evidence linking Mr Nguyen to the Calderbank offer, no evidence that he advised against its acceptance or even in respect of it, and no evidence that might enable a conclusion that any of the Alam family would have acted on his advice. Whilst these difficulties are overcome in respect of Mr Giampietro by the Costs Decision, that decision is of no assistance in proving matters against Mr Nguyen." 1. Having regard to those matters, it is difficult not to conclude that the case that was actually brought against the barrister was ill-conceived, particularly in light of the defence available to him of advocates immunity. Even if one considers the question of reasonableness from the standpoint of the plaintiffs, who were not lawyers and did not have legal advice, they were sophisticated enough to launch and prosecute the professional negligence proceedings which they did. In my opinion, it may well not have been reasonable for the plaintiffs to have brought those proceedings against the barrister. However, I would not rest my decision purely on that basis. 2. In my opinion, a greater obstacle stands in the plaintiffs' way. Even if I am wrong about whether it was reasonable for the plaintiffs to have brought those proceedings, in my opinion the plaintiffs have not identified any conduct on the part of the solicitor which would make it fair to impose liability on him for the costs of the successful barrister. There is no evidence of a positive assertion, express or implied, that the solicitor was not liable because the barrister was. There is no evidence that the solicitor said or did anything that led the plaintiffs to commence proceedings against the barrister. 3. In my opinion conduct has not been shown such as to make it fair to impose liability on the solicitor for the costs of the successful barrister. 4. For those reasons I refuse the plaintiffs' application for a Sanderson or Bullock order. 5. The next issue to consider is the first and second plaintiffs' application that the third plaintiff be ordered to bear the burden of any costs order against the plaintiffs. This order was opposed by the third plaintiff, who submitted that any order against the plaintiffs should be made against all three of them jointly and severally. Parties' submissions 1. The first and second plaintiffs submitted that the nature and extent of the deceased's participation in the proceedings justify this special order. This is put on the basis that the deceased was the "mouthpiece of the plaintiffs" from the commencement of the proceedings until her untimely death on 19 October 2019. Reference is made to paragraph [3] of Judgment No. 1 where his Honour recorded that the proceedings were, by leave (which was unopposed), conducted on behalf of the Alam family by the deceased, something I referred to at the commencement of these reasons. 2. Reference is also made to evidence of the first defendant in cross-examination which is recorded in paragraph [98] of Judgment No.1 where the first defendant asserted under cross-examination by the deceased that she was the mouthpiece of "both plaintiffs". Reference is also made to paragraphs [70 – 72] of Judgment No.1 and the submission made that I should draw the inference from those paragraphs that the first plaintiff merely followed the other plaintiffs during the course of these proceedings. It was also submitted that the deceased's "conduct and control of the litigation" is also evident from her command of English, which was apparently superior to that of the first and second plaintiffs, referring again to paragraph [3] Judgment No.1. 3. The second plaintiff relied upon an affidavit she affirmed on 13 September 2023 for the purposes of the Notices of Motion which are before me. In paragraph [28] of that affidavit the second plaintiff said: "Until my late mother's passing on 19/10/2019, my mother was the person who was controlling the decisions made by me in all of the Court proceedings and after that date of 19/10/2019 Mr Alam was the person who was controlling the decisions made by me in all the court proceedings until about beginning of 2022, which was around the time I was preparing response to my husband's divorce application filed by my ex husband, Mr Alam.". Mr Alam is of course the first plaintiff. The first plaintiff relied upon an affidavit sworn by him on 13 September 2023. In paragraph [7] of that affidavit, the first plaintiff swore that from 10 May 2002 until her death, the deceased was in control of the household finances and decision-making of the household. In paragraph [10] of that affidavit the first plaintiff says that throughout the deceased's life she was involved in a number of legal proceedings and it was the deceased who generally spoke to the solicitor or barrister and instructed them. The first plaintiff said that "The deceased would say to me words to the effect of: I will tell them what we need to do and you will agree". In paragraph [16] of the affidavit the first plaintiff says that the proceedings before Judge Taylor were commenced "under the directions of the deceased" against the former solicitors. 1. Neither the second plaintiff nor the first plaintiff were cross-examined about this evidence. 2. The second plaintiff also relied upon the fact that the deceased had been appointed to act as her tutor in the prior litigation. I was invited to draw an inference that this corroborated the submission that the deceased was in control of the proceedings. According to her affidavit of 13 September 2023 at paragraph [21], the second plaintiff has been suffering from cerebral palsy from birth, has the use of a hand and she types on a light computer program and uses a motorised wheelchair. As I have mentioned already she was married to the first plaintiff. In paragraph [29] of her affidavit she states that she has four children. 3. The third plaintiff submitted that the court is being asked to determine where costs fall through the lens of the judgment of Judge Taylor and that the proceedings before Judge Gibb are not relevant. The key finding, it is submitted, is that all three plaintiffs were unsuccessful against the second defendant. The third plaintiff submitted that all three of the plaintiffs set out on the claim together and all were unsuccessful against the second defendant. The third plaintiff submitted that the plaintiffs advanced one pleaded claim together and did not conduct separate or distinct cases, one from the other. The third plaintiff submitted that it was a misrepresentation of the actual position to say that "the deceased conducted the litigation". It was pointed out that neither the first nor the second plaintiffs filed submitting appearances in the proceedings. Each were involved in the litigation and the first plaintiff himself filed affidavit evidence in the proceedings. Moreover, the deceased had died before final submissions were made and judgment delivered. In the events that occurred, the first plaintiff made submissions on behalf of all three plaintiffs before judgment was delivered, including with respect to costs. In those circumstances, the third plaintiff submitted, that it would be both contrary to the general rule and disproportionate for the deceased or now her estate to be solely liable for the costs of the second defendant. 4. The third plaintiff submitted that a number of ordinary rules applied in the event the court declined to make a Sanderson order. Chief amongst them was that costs should follow the event. It was also submitted that unsuccessful parties are ordinarily jointly and severally liable for the costs of the successful parties in proceedings. 5. The second defendant submitted that these ordinary rules ought to apply. Legal principles 1. Section 98 of the Civil Procedure Act 2005 provides that subject to the rules of court and to the Act or any other Act, costs are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent costs are to be paid. 2. Rule 42.1 UCPR provides that subject to part 42, if the court makes any order as to costs, it is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 3. Whilst the power to award costs is discretionary, it is a power that must be exercised judicially in accordance with recognised principles. Some of those principles and the nature of the court's discretion were considered most recently by the High Court in Northern Territory v Sangare (2019) 265 CLR 164. That case stands for the proposition that in the exercise of the judicial discretion as to costs at the conclusion of litigation, the impecuniosity of an unsuccessful party, without more, is not a consideration that justifies denying the successful party its costs. That consideration is not relevant to the proper exercise of the court's discretion as to costs. According to the Court, at [25] "a guiding principle by reference to which the discretion is to be exercised – indeed, 'one of the most, if not the most, important' principle – is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome." 1. The general principles about joint and several liability for costs of multiple parties were summarised by Davies J in Royal v El Ali (No 3) [2016] FCA 1573 at [53]. Her Honour said: The applicants seek orders that costs be ordered against the respondents on a joint and several basis by reason of the general principle that unsuccessful parties bear the costs liability jointly and severally: ASIC v ActiveSuper Pty Ltd (in liq) (No 2) [2015] FCA 527 ; (2015) 106 ACSR 302 at [111] citing City of Swan v Lehman Bros Australia Ltd (No 3) [2009] FCA 1190; GE Dal Pont, Law of Costs (3rd ed, LexisNexis Butterworths Australia, 2013) at [11.2]. The general principle that multiple respondents are to be made jointly and severally liable for the costs of the successful party flows from the rationale that, because the successful party's prima facie entitled to its costs of the action, that party should not lose that entitlement if one of the parties against whom costs orders are made cannot, or will not, meet its share of the costs burden: Perigo v Workers Compensation Nominal Insurer (No 3) [2013] NSWSC 6 at [4]–[5], citing Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 and Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670 at [16]; GE Dal Pont, Law of Costs (3rd ed, LexisNexis Butterworths Australia, 2013) at [11.2]. The general principle is that each unsuccessful party will be jointly and severally liable for the costs of the successful party, without differentiation between them, unless there are "special circumstances" warranting a departure from that principle: Tomasetti v Brailey [2012] NSWSC 120 at [30] and the authorities cited. My decision on the first and second plaintiffs' application for a special order that the third plaintiff should bear the burden of any costs order in favour of the second defendant 1. Whilst it is true to say that costs are in discretion of the court, the starting point is that costs should follow the event. No one has suggested, as I have already mentioned, that the successful second defendant should be denied his costs. The rationale that multiple respondents are to be made jointly and severally liable for the costs of a successful party because the successful party should not lose its entitlement if one of the parties against whom costs orders are made cannot, or will not, meet its share of the costs burden is, in my opinion, a powerful one. 2. In my opinion the suggestion that because whilst she was alive the deceased spoke for the plaintiffs in the proceedings is not a sufficient reason to make a special order departing from the general principle. I am not satisfied on the evidence before me that the deceased had control over the conduct of the litigation to the exclusion of the first and second plaintiffs. Further, and in any event, I am not satisfied that it would be appropriate to make a special order in all the circumstances. 3. For those reasons, I decline to make a special order that the third plaintiff should bear the burden of any costs order in favour of the second defendant. 4. This takes me to the final issue about the two qualifications the second plaintiff sought to be made. I have referred to these in paragraph 9(3). 5. As I understood it, in oral submissions it was put that in the event that the plaintiffs are ordered to pay costs, a special order should be made which would give the Supreme Court the ability to re-apportion or to apportion any costs order in favour of the second defendant as between the plaintiffs individually. This was said to be because all of the plaintiffs were involved as parties in proceedings currently before the Supreme Court concerning the deceased's estate. In written submissions I was directed to paragraph [39] of the second plaintiff's affidavit where the second plaintiff respectfully contended "that any further readjustment or re-apportionment of the costs burden of the competing motions among PI, P2 and P3 respectively, should be carried out by the Supreme Court, rather than by the District Court, as part of the pending Supreme Court proceedings, when the Supreme Court hears and determines the pending family provision claims in respect of which PI, P2 and P3 are all parties thereto.". Counsel for the second plaintiff was unable to provide me with a reference to any precedent in which such an order had been made. Reliance is placed upon the general discretion of the court under section 98 Civil Procedure Act 2005. I fail to see how I have the power to make such an order. Even if I did have the power, I fail to see why I should exercise my discretion to make such an order in the circumstances. No order that I make about the costs of these proceedings can prevent the Supreme Court from adjusting the plaintiffs' interests as between one another in the exercise of any jurisdiction Supreme Court may have over them. It is not part of my function or role to tell the Supreme Court what to do. 1. As I understood it, in oral submissions it was put that the second qualification to any order made against the second plaintiff should be that it should not be enforceable or should be stayed pending the resolution of proceedings currently before the Supreme Court in relation to the deceased's estate. In written submissions I was directed to paragraph [40] of the second plaintiff's affidavit where the second plaintiff asked "for an additional Order in the current motions that neither applicant in the current 2 Notices of Motions can enforce any costs order against me arising out of the current motions until further Order granting liberty to enforce has been granted to party/ or parties by the Supreme Court in the related family provision proceedings to enforce any such District Court costs". Once again, counsel for the second plaintiff was unable to provide me with a reference to any precedent in which such an order had been made. Once again, reliance was placed upon the general discretion of the court under section 98. I fail to see why the second defendant should have to wait for his costs whilst the plaintiffs resolve their unrelated dispute in the Supreme Court. I decline to make the orders sought by the second plaintiff. Orders 1. For those reasons, I make the following orders: 1. The plaintiffs are to pay the second defendant's costs of the proceedings. 2. The plaintiffs are to pay the first and second defendants' costs of the applications and hearing before me. 3. The motions filed by the second defendant on 30 May 2023 and the third plaintiff on 17 July 2023 are otherwise dismissed. 4. The exhibits may be returned. ********** 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: 27 October 2023