Popovic v Murray - [1991] TASSC 124

Serial No B10/1991
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Popovic v Murray [1991] TASSC 124; B10/1991

PARTIES:  POPOVIC
  ELECTROLYTIC ZINC COMPANY LTD
  v
  MURRAY
  LEA BROOK HOLDINGS

FILE NO/S:  814/1985
DELIVERED ON:  15 March 1991
JUDGMENT OF:  Green CJ

Judgment Number: B10/1991
Number of paragraphs: 8

Serial No B10/1991
List "B"
File No 814/1985

POPOVIC and THE ELECTROLYTIC ZINC COMPANY LTD
v MURRAY and LEA BROOK HOLDINGS

REASONS FOR JUDGMENT GREEN CJ

15 March 1991

The first plaintiff obtained judgment upon his claim for damages for negligence and the second plaintiff obtained judgment upon its claim made pursuant to s8H of the Workers' Compensation Act 1927. The nature of the claims and the issues and the way in which they were determined appear in reasons for judgment No B32/1989. All parties now seek orders for costs. I shall consider the plaintiffs' applications and liability for costs separately but I do not distinguish between the defendants' applications or liability for costs.

In essence counsel for the defendants submits that the issues of liability and the first plaintiff's entitlement to damages for the short term consequences of his injuries in respect of which the plaintiff was successful were not strongly contested and their determination occupied only a very small proportion of the hearing time of the trial whilst the issue of the first named plaintiff's entitlement to damages for what he claimed was a permanent or at least a long term disability in respect of which the plaintiffs were completely unsuccessful was strongly contested and its determination occupied the great bulk of the hearing time of the trial. Accordingly the defendants applied for orders that the plaintiffs pay a substantial proportion of the defendants' costs.

In essence counsel for the plaintiffs submits that the only two basic issues were liability and quantum and that as the plaintiffs were wholly successful in respect of the issue of liability and obtained judgment for more than nominal amounts they are entitled to orders for costs and should not be liable to pay any part of the defendants' costs.

In Trade Practices Commission v Nicholas Enterprises Pty Ltd (1970) 28 ALR 201 at p209 Fisher J said in relation to making special orders for costs in a passage which was cited with approval by the Supreme Court of New South Wales (Court of Appeal) in Egger v Gosford Shire Council (1989) 67 LGRA 304 at p324:

"'Forbes v Samuel [1913] 3 KB 706 and Gold v Patman and Fotheringham Ltd [1958] 1 WLR 697; [1958] 2 All ER 497, are authorities for the proposition that if a considerable portion of the trial is taken up in determining issues upon which a defendant fails, it is a proper exercise of discretion to reduce the costs allowed that defendant. Bray CJ in Cretazzo v Lombardi (1975) 13 SASR 4 at 14, was of opinion that it was proper to split costs in accordance with the success of the parties on various disputed questions of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] TASSC 124
Decision Date: 15 March 1991

CaseChat Overview and Summary

The case of Popovic v Murray, adjudicated by the Supreme Court of Tasmania, involved the first plaintiff, Popovic, who sought damages for negligence, and the second plaintiff, the Electrolytic Zinc Company Ltd, which sought compensation pursuant to Section 8H of the Workers' Compensation Act 1927. The defendants in the case were Murray and Lea Brook Holdings. The dispute centred on the costs incurred by the parties following the trial, particularly in relation to the determination of whether the first plaintiff had suffered any permanent or long-term disability as a result of his injuries, an issue on which the plaintiffs were unsuccessful. The court was tasked with deciding whether the plaintiffs should bear any costs associated with the unsuccessful determination of this issue.

The legal issues before the court primarily revolved around the principles governing the allocation of costs in civil litigation, particularly in cases where a party is successful on some issues but unsuccessful on others. The court had to consider whether the unsuccessful issues, especially the determination of permanent disability, warranted an adjustment in the usual costs order. The court referenced precedents such as Trade Practices Commission v Nicholas Enterprises Pty Ltd and Cretazzo v Lombardi to support the proposition that a significant portion of trial time spent on unsuccessful issues could justify a reduction or reallocation of costs.

The court reasoned that the issue of permanent disability was a clearly severable factual issue and that the plaintiffs had wholly failed on this matter. Given the distinct nature of this issue and the substantial trial time it consumed, the court found it unjust for the defendants to bear the full costs of its determination. The court also noted that the plaintiffs were aware of the exaggerated nature of their claims, and therefore, the undisclosed surveillance videos did not alter the overall fairness of the outcome. Consequently, the court ordered that the plaintiffs should bear the defendants' costs associated with the unsuccessful issue of permanent disability, while the defendants would cover the costs reasonably incurred by the plaintiffs to establish liability and the temporary disability that was found to exist.

The final orders of the court did not immediately specify the exact apportionment of costs but provided for further submissions from the plaintiffs' counsel on the appropriate allocation. The court also decided to personally apportion the costs, rather than relying on a taxing officer, to avoid the additional time and expense involved in a detailed cost analysis. The hearing of the application for costs was accordingly adjourned.

Orders