James Spittles v Michael's Appliance Services Pty Ltd & Ors [No 2]

THE COURT : On 14 April this year the Court, as presently constituted, dismissed the appellant’s appeal from the judgment of Balla DCJ and ordered him to pay the costs of the first respondent. The second and third respondents, by arrangement, had not been represented at the hearing and were given liberty to apply for orders as to costs. Both respondents subsequently made applications in writing for orders in their favour.

The plaintiff, who had been injured by a defective refrigerator, sued the company which had done work on the appliance relying on ss 74B and 74D of the Trade Practices Act . The defendant filed a cross-claim against the second respondent which was the importer of the refrigerator and it in turn filed a cross-claim against the third respondent which had supplied the defective part that injured the plaintiff.

The plaintiff failed against the defendant at the trial and the Judge did not have to decide the issues raised by the cross-claims. The plaintiff appealed to this court and joined as respondents not only the defendant but also the first and second cross defendants without seeking relief against them. This created problems for the second and third respondents who appeared and incurred costs. The first respondent, the defendant in the action, did not file a cross appeal against the second respondent at that stage.

On 29 February 2008 the first respondent served a notice of motion seeking leave to file a cross appeal against the second respondent which then filed a similar motion against the third respondent. The motions came before Tobias JA on 10 April 2008 by which time agreement had been reached for the cross appeals to be deferred until after the decision in the appeal.

Pursuant to liberty to apply the second and third respondents have applied in writing for orders for costs in their favour. No submissions had been received from the appellant and his solicitor has informed the Registrar that none would be filed.

There was no need for the appellant to join the second and third respondents to his appeal. He did not seek any relief against them, and he could have proceeded against the first respondent leaving it to take such steps, by way of cross appeal against the second respondent or otherwise, as it might be advised. However the appellant did join the other respondents and they were justified in appearing and incurring costs to safeguard their interests.

In our judgment both respondents are entitled to orders that the appellant pay their costs of the appeal, including the costs of the present applications, but without disturbing any existing orders for costs.