Smith v Brambles Australia Ltd [2011] NSWSC 1518

Supreme Court New South Wales

Medium Neutral Citation: Smith v Brambles Australia Ltd [2011] NSWSC 1518 Hearing dates: 18 November 2011 Decision date: 09 December 2011 Jurisdiction: Common Law Before: Schmidt J Decision: As Concerns the First Defendant ('Brambles'): 1. Verdict and Judgment in favour of the Plaintiff against the First Defendant ('Brambles') for damages ($784,254.26) and interest ($42,818.00) in the sum of $827,072.26. 2. On the First Cross-Claim Verdict and Judgment in favour of Brambles against the Second Defendant ('Baden') in the sum of (45% x $827,072.26) $372,182.51. 3. On the Third Cross-Claim Verdict and Judgment in favour of Brambles as against the third Defendant ('Gillespies') in the sum of (20% of $520,785.00) $104,157.00. 4. Brambles to pay the Plaintiff's costs on a party/party basis. 5. In any event, the total liability of Brambles on the Second and Fourth Cross-Claims is not to exceed (35% of $827,072.26) $289,475.29, plus costs. As Concerns the Second Defendant ('Baden') 6. Verdict and Judgment in favour of the Plaintiff against the Second Defendant ('Baden') for damages ($784,254.26) and interest ($42,818.00) in the sum of $827,072.26. 7. On the Second Cross-Claim Verdict and Judgment in favour of Baden against Brambles in the sum of (35% x $827,072.26) $289,475.29. 8. On the Fifth Cross-Claim Verdict and Judgment in favour of Baden as against Gillespies in the sum of (20% of $520,785.00) $104,157.00. 9. Baden to pay the Plaintiff's costs on a party/party basis. 10. In any event the total liability of Baden on the First and Fourth Cross-Claims is not to exceed (45% of $827,072.26) $372,182.51, plus costs. As Concerns the Third Defendant ('Gillespies') 11. Verdict and Judgement in favour of the Plaintiff as against the Third Defendant ('Gillespies') for damages in the sum of $520,786.00. 12. Gillespies is to have credit for payments made to for or on behalf of the plaintiff pursuant to the Workers Compensation Act 1987 in the sum of $194,245.29. 13. The Plaintiff otherwise is to repay the Third Defendant's workers compensation insurer Gallagher Bassett Services Pty Ltd pursuant to section 151Z(1)(b) the sum of $194,245.29. 14. On the Fourth Cross-Claim Verdict and Judgment in favour of Gillespies as against Brambles in the sum of (35% of $520,785.00) $182,274.75. 15. On the Fourth Cross-Claim Verdict and Judgment in favour of Gillespies as against Baden in the sum of (45% of $520,785.00) $234,353.25. 16. In any event the total liability of Gillespies on the Third and Fifth Cross-Claims is not to exceed (20% of $520,785) $104,157.00 which, taking into account repayment of Workers Compensation, provides for a net repayment to Gillespies or to Gallagher Bassett Services Pty Limited of $90,088.29. 17. Gillespies to pay the Plaintiff's costs in accordance with provisions of the Workers Compensation Act 1987 and Workplace Injury Management Act 1998 as assessed or agreed. Catchwords: PROCEDURE - costs - departing from the general rule - whether indemnity costs order should be made - offers of compromise - Calderbank offers - orders Legislation Cited: Civil Procedure Act 2005 Workers Compensation Act 1987 Workplace Injury Management Act 1998 Uniform Civil Procedure Rules 2005 Cases Cited: Commonwealth of Australia v Gretton [2008] NSWCA 117 Smith v Brambles Australia Ltd [2011] NSWSC 963 Category: Costs Parties: Craig Lionel Smith (Plaintiff) Brambles Australia Limited (First Defendant) Baden Cranes Pty Limited formerly GM Baden Pty Limited (Second Defendant) Gillespies Cranes Nominees Pty Limited t/as Gillespies Crane Services (Third Defendant) Representation: Counsel: Mr H Kelly SC with Mr T McKenzie, counsel (Plaintiff) Mr R Seton SC (First Defendant) Mr G Curtin SC with Mr D Macfarlane (Second Defendant) Mr S Kettle, counsel (Third Defendant) Solicitors: Taylor & Scott Lawyers (Plaintiff) McCabe Terrill Lawyers (First Defendant) Riley Gray-Spencer Lawyers (Second Defendant) Hicksons (Third Defendant) File Number(s): 2006/267240 Publication restriction: None