Nichols v Singleton Council (No 3)  NSWSC 367
In Nichols v Singleton Council  NSWSC 1517,the plaintiff, a councillor with Singleton Council (the Council) sought relief against the Council, Mr Smith, Mr Greensill and Mr Thomson, all employees and/or agents of the Council, in relation to a complaint made about him under the Council’s Code of Conduct. The plaintiff sought orders restraining the defendants from dealing any further with the complaint. The court found in favour of the plaintiff as against the Council, Mr Smith and Mr Greensill, but not Mr Thomson. The defendants were jointly represented at the hearing.
The plaintiff and defendants subsequently made various submissions to the Court on the issue of costs. In particular, two submissions were made that provide a useful overview of how costs may be apportioned in circumstances where there are multiple defendants and multiple claims against those defendants have been made, a not uncommon occurrence in insurance cases. The submissions were:
- that the circumstances justified a Sanderson type order being made in relation to Mr Thomson’s costs. A Sanderson order is an order which requires the unsuccessful defendants to pay the costs of the successful defendants leaving the plaintiff out of the process entirely (submitted by the plaintiff); and
- that the plaintiff should obtain a reduced portion of costs as against the unsuccessful defendants on the basis that he was not successful on all his claims against them (submitted by the defendants).
We discuss the Courts consideration of these two submissions below.
Submission 1 - Sanderson Order:
The Court stated that, in circumstances where the plaintiff was successful against three out of four defendants, the usual order would be for the unsuccessful defendants to pay the costs of the plaintiff and the plaintiff to pay the costs of the successful defendant. The overriding consideration in varying the usual order and making a Sanderson type order is whether the circumstances are such that the successful party’s costs should be paid by a particular unsuccessful party.
The court did not find that the facts warranted departing from the usual costs order in relation to Mr Thomson, and a Sanderson order was not made. The Court’s reasoning for this determination was:
- an order for costs in favour of the successful party is compensatory in nature and not punitive;
- to deprive Mr Thomson of a costs order would not be just;
- in Mr Thomson’s instance, it is the plaintiff who is the unsuccessful party and there was nothing to show that Mr Thomson’s joinder as a defendant was a result of anything which he or the Council and other defendants did.
The Court did however find that given the joint representation in the proceedings and the fact that all of the defendants advanced the same cases, some assessment must be made as to what proportion of the case concerned the claims advanced against Mr Thomson. Importantly the Court assessed that the claim against Mr Thomson only involved 15 per cent of the time taken in the proceedings and therefore that the plaintiff should not have to bear more than a 15 per cent share of the costs incurred by the four defendants in their joint representation.
Submission 2 – reduced costs awarded to the plaintiff on the basis that he was not successful on all claims
The Court did not accept the defendants’ submission that the plaintiff should have to pay a reduced portion of the costs of the unsuccessful defendants because he was not successful on all his claims against them. It found that whilst the plaintiff did not make out all of his complaints, he did not unreasonably pursue any of the issues on which he failed.
Further, the Court found that the case advanced by the plaintiff against the three unsuccessful defendants did not involve clearly discrete issues in respect of which the time taken on each issue could be readily identified or realistically estimated and it would be unreasonable to seek to separate out the time taken in relation to the issues on which the plaintiff did not succeed.