New South Wales Court of Appeal CITATION: Chotiputhsilpa v Waterhouse & Anor [2005] NSWCA 342 HEARING DATE(S): (On written submissions) JUDGMENT DATE: 10 October 2005 JUDGMENT OF: Beazley JA; Giles JA; Ipp JA DECISION: (1) The second respondent pay the appellant's costs of the trial and of the appeal; (2) The second respondent pay the costs of the first respondent in respect of 3 days of the trial proceedings; otherwise the appellant pay the costs of the first respondent of the trial and of the appeal. CATCHWORDS: Costs - Bullock or Sanderson order - general discretion as to costs - plaintiff liable to pay first defendant's costs - first defendant's costs increased because of additional hearing time due to second defendant's conduct - whether second defendant to pay the increased costs - ND. Bullock v London General Omnibus Company (1907) 1 KB 264; CASES CITED: Gould & Anor v Vaggelas & Ors (1985) 157 CLR 215; Sanderson v Blyth Theatre Co [1903] 2 KB 533. Suppachai Chotiputhsilpa (by his tutor Supparek Chotiputhsilpa (Appellant) PARTIES: George Allan Waterhouse (First Respondent) Roads and Traffic Authority of New South Wales (Second Respondent) FILE NUMBER(S): CA 40122/04 B J Gross QC & S B Dixon (Appellant) COUNSEL: D F Rofe QC & B Hull (First Respondent) I G Harrison SC & W S Reynolds (Second Respondent) Tim Young & Associates (Appellant) SOLICITORS: Malcolm Johns & Company (First Respondent) Henry Davis York (Second Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3857/00 LOWER COURT JUDICIAL OFFICER: Twigg DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40122/2004 DC 3857/2000 BEAZLEY JA GILES JA IPP JA Monday 10 October 2005 SUPPACHAI CHOTIPUTHSILPA by his tutor SUPPAREK CHOTIPUTHSILPA v. WATERHOUSE & ORS [NO.2] Judgment 1 THE COURT: The Court entered judgment in this matter on 2 September 2005, in which it dismissed the appeal against the first respondent but allowed the appeal against the second respondent. The appellant now seeks the following orders in relation to costs, both of the proceedings at first instance and of the appeal: (1) that the second respondent pay the appellant's costs both of the trial and of the appeal; (2) that the second respondent pay any costs that the appellant may be ordered to pay to the first respondent; (3) that the second respondent pay the costs that the appellant was ordered to pay to the third defendant, the State Transport Authority (STA) in the court below. 2 The second and third of these orders are sought by way of a Bullock Order or, alternatively, a Sanderson Order: see Bullock v London General Omnibus Company (1907) 1 KB 264; Sanderson v Blyth Theatre Co [1903] 2 KB 533. 3 The first respondent's initial submission was that his costs both on the appeal and in the court below should follow the event. The purport of that submission is that the appellant should pay the first respondent's costs of the entirety of the proceedings. This will be dealt with more fully below. 4 The second respondent acknowledges that it should pay the appellant's costs of the trial and of the appeal. It contends, however, that there is no basis for the making of a Bullock Order or a Sanderson Order against it in respect of the first respondent. 5 The second respondent also resists being made liable for the costs of the third defendant in the Court below, the STA. In this regard, it points out that there is no appeal against the order made by the trial judge in favour of the STA against the appellant. 6 Both the appellant and the second respondent seek liberty to apply in respect of any costs orders that are made as it appears that offers of settlement have been made between them that may found an application for indemnity costs. That cannot be determined of course until such time as the retrial on damages has taken place. 7 It is apparent, therefore, that the essential dispute between the parties is as to who ought to be liable for the costs of the first respondent and whether there is any basis for making any different order from that made by the trial judge in respect of the STA. Should a Bullock Order or a Sanderson Order be made in respect of the costs of the first respondent. 8 The appellant submitted that the conduct of the second respondent during the course of the trial was such as to impair his ability to negotiate or otherwise settle his claims as against the first respondent and the STA. The particular matter upon which the appellant relies in support of his application for the making of a Bullock or Sanderson Order was the failure of the second respondent to give adequate discovery of documents which, the appellant contends, meant that he conducted the proceedings upon a false basis until day 7 of the trial. 9 He further submits that this position was compounded by the second respondent having, at an early stage of the proceedings, made an admission that that there were signs in place at the commencement of the footpath that led to the subway pointing in the direction of Pyrmont and the City. It had became apparent on day 7 of the hearing from photographs attached to Mr Bailey's report, obtained on behalf of the first respondent, that at the time of the accident there were in fact no signs of any type at or near the bus stop. This resulted in the second respondent having to withdraw the admission and the experts having to be recalled to give evidence based on the fact that there were no signs in existence as at the date of the accident. 10 The appellant further complains that the second respondent not only gave inadequate discovery, but that such discovery as was given occurred in "dribs and drabs". The appellant submitted that this impeded his ability to adequately assess the merits and strength of his claims against the various parties. 11 The chronology of the history of the discovery and production of documents upon subpoena is contained in the appellant's submissions and includes the fact that as at June 2003 the second respondent advised the appellant that there were no further documents to produce when this clearly was not the case. Indeed, the second respondent only finally produced documents relating to the safety audits that had been conducted concerning the Anzac Bridge, and which were relevant documents in the proceedings, at the end of the trial. At no stage did the second respondent produce any documents concerning when signs were in fact erected in the vicinity of the footpath leading down to the subway. 12 From the appellant's point of view, the matter was further complicated by the fact that there were cross-claims on foot. The first respondent had cross-claimed against the second respondent and against the STA. Likewise, the second respondent had cross-claimed against the first respondent as well as against the STA. The appellant submits that this made it difficult not only for it to enter into any negotiations with the first respondent, but also to discontinue against him because of the existence of the cross-claim by the second respondent against him. 13 The second respondent contends that there is no basis for the making of a Bullock Order or a Sanderson Order in this case in relation to the costs of the first defendant. It points out that the case against the first respondent was always based upon an allegation relating to the manner in which the first respondent drove his motor vehicle. At no time was the case against him dependent upon the presence or otherwise of any signs at or near the bus stop. In this respect, the case against the first respondent was always separate and distinct from that against the other defendants. 14 In Gould & Anor v Vaggelas & Ors (1985) 157 CLR 215 the High Court held that a Bullock order may be made where a plaintiff has reasonably joined the successful defendant by reason of some conduct on the part of the unsuccessful defendant such as to make it fair to impose a liability on the unsuccessful defendant for the costs of the successful defendant. 15 That is not this case and the second respondent is correct when it submits that this is not an appropriate case for the making of a Bullock order. The case against the first respondent was in respect of very different conduct from that alleged against the second respondent. This was not a case where there was, as between the first and second respondents, some doubt as to who was responsible for the particular conduct which it was alleged constituted negligence. Rather, it was a case where two claims alleging very different conduct was brought against the first and second respondents respectively. 16 That, however, is not the end of the matter. The Court has a discretion as to costs: see s.76 Supreme Court Act 1930 (NSW). Pursuant to the provisions of Part 52A r.11 of the Supreme Court Rules 1970 (NSW): "if the Court makes any order as to costs, the Court shall, subject to this part, order that the costs follow the event, except where it appears to the Court that some other order should be made as to the whole or any part of the costs ". (emphasis added) 17 In the Court's opinion, and subject to the question whether the first respondent ought to bear responsibility for his own costs for the additional hearing time caused by the misunderstanding in relation to the signage, the second respondent ought to be responsible for those costs. It was the party with all of the information that related to the construction and maintenance of the Anzac Bridge including the pedestrian walkway and the signs. It not only failed to give adequate discovery in relation to the signage it made an admission at an early stage of the proceedings that was wrong. Although the case against the first respondent did not need to extend to a consideration of the signage at or near the bus stop, the fact is the first respondent's expert, Mr Bailey, was cross-examined about it. As has already been indicated, all the experts needed to be recalled when the correct position as to the signage was ascertained. 18 The question that has to be determined is whether, despite the omission of the second respondent in failing to reveal the correct position as to the signage, the first respondent ought to bear his own costs to the extent that the hearing was extended by the misunderstanding in relation to the signage. The only basis upon which such a liability ought to be placed upon him is the fact that he had in his possession, as a result of his own forensic investigations, photographs that revealed the correct position. Those photographs were taken in May 2000 and became part of the report of the first respondent's expert Mr Bailey, which was prepared in May 2001. It should be added that the signage is not particularly clear in the photographs. 19 The fact that the first respondent did have a view of the scene and had taken photographs is not sufficient in this case to require an order that the first respondent bear a portion of his own costs. The appellant's case against the second respondent was that the signage at and near the bus stop was inadequate. However, there was nothing in the case made against the first respondent that would have required his legal advisers to focus upon the signage. Accordingly, it is not unreasonable that the first respondent did not pick up that the appellant's case against the second respondent was misconceived in that there was in fact no signage present at the time of the accident. 20 In those circumstances, the first respondent should not be made to bear his own costs to the extent that the hearing was extended because of the error in respect of the signage. 21 That leaves one further consideration in the matter. The appellant further complains that his ability to settle with the other parties was affected by the inadequacies in the discovery production of document process. That is possibly correct in relation to the STA, although that is not a matter about which the Court can be concerned. However, it is not the case in relation to the first respondent. As already explained, the appellant's case against the first respondent was separate and distinct from that against the second respondent. The appellant's complaint really amounts to a complaint that if he had been in a position to better evaluate his case against the second respondent, he may have been able to resolve his claim against the first respondent in some way. However, that is not a basis for making the second respondent responsible for the quite separate allegations against the first respondent. 22 For those reasons, the appropriate order is that the second respondent should be liable for the costs of the first respondent in so far as the hearing was extended by reason of the parties proceeding, until day 7 of the hearing, upon the wrong assumption in relation to the signage. A review of the transcript reveals that of that time approximately 10 hours of evidence was taken up with the evidence of the appellant (some of which was relevant to the case against the second respondent) and with the evidence of the first respondent and his lay witnesses. The expert evidence took approximately 7 hours. 23 After day 7 there was another 4 days when witnesses were called and another 2 days of submissions. The further 4 days of evidence involved the recall of the experts as well as calling the jogger, whose evidence also went to signage. It should be noted however, that in those 4 days there was again only approximately 7 hours of expert evidence was called. In addition, a half day was taken for a view. The balance of the time was taken up with argument. 24 An apportionment of costs in circumstances such as this is not an exact exercise. However, there can be no doubt that most of the evidence of the experts when originally called had to be reassessed because of the error relating to the signs. In our opinion, therefore, assessing the matter broadly, the second respondent ought to be responsible for nearly the entirety of the time taken for the expert evidence to be given in the first 7 days of the trial, together with the time taken to argue the consequences of the RTA's error and omission in relation to the signage. We propose to order therefore that the second respondent be responsible for 3 days of the first respondent's costs of the trial. 25 That leaves the appellant's application in relation to the costs of the STA. As the second respondent pointed out, there was no appeal made in respect of the order relating to the STA. In those circumstances, it is not open to this Court to make an order different from that made by the trial judge. 26 The Orders of the Court are: 1. The second respondent pay the appellant's cost of the trial and of the appeal. 2. The second respondent pay the costs of the first respondent in respect of 3 days of the trial proceedings; otherwise the appellant pay the costs of the first respondent of the trial and of the appeal. ********** 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.