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

1. 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.

1. 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.

1. 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.

1. 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 fact and law, and this view was shared on the facts of that case by Zelling and Jacobs JJ, the other members of the Full Court. In Jennings v Zilahi–Kiss (1972) 2 SASR 493 Bray CJ allowed a successful defendant portion only of its costs'."

1. In Cretazzo's case, Bray CJ at p12 made it clear that he was of the opinion that where a plaintiff failed on a particular issue not only might his costs be reduced but in an appropriate case he could be ordered to pay the defendant's costs of the determination of that issue. The same view was taken by Pincus J in Schindler Lifts Australia Pty Ltd & Anor v Debelak & Ors (1989) 89 ALR 275 at p319. The foregoing decisions also make it clear that the cases in which a partially successful plaintiff may be ordered to pay costs are not confined to those in which the plaintiff has failed on a legal issue or has failed to sustain a claim based on a distinct cause of action but will include cases in which the plaintiff has failed in respect of some identifiable issue of fact.

1. In this case the issue of whether the first plaintiff suffered any permanent or long term disability as a result of his injuries was a clearly severable factual issue. It was not the sort of case in which the determination of the plaintiff's claim involved questions of degree such as the extent of a particular disability or the amount of pain which is being suffered or whether a disability will continue for say four, seven or ten years. In cases of that kind a plaintiff can usually be expected to be awarded the whole of his costs even if he only succeeds in establishing his entitlement to damages to a more limited extent than he originally claimed. But the main issue which was contested in this case did not involve any question of degree of that kind. In essence the contest in this case was whether the first plaintiff's injuries resulted in a disability which endured for a relatively short time and then disappeared or whether his injuries resulted in a permanent disability. That was a distinct issue and the evidence relating to it was largely severable. Upon that issue the first plaintiff wholly failed and in my view it would be unjust if the defendants had to bear the costs of its determination. I take the same view in relation to the second plaintiff. The primary issue to be determined in relation to its claim was whether the first plaintiff's disability was temporary or permanent and it wholly failed in its attempt to show that it was permanent.

1. I do not accept the submission that the fact that some parts of the defendants' case including in particular the video films of the surveillance of the first plaintiff were not disclosed to the plaintiffs before trial should influence the exercise of my discretion. The first named plaintiff knew from the beginning of the trial that much of the evidence in support of his claim was exaggerated or false. The only result of his not being made aware of the video films was that he did not know from the beginning of the trial that the defects in his case were going to be exposed.

1. I am satisfied that the plaintiffs should pay the defendants' costs of the determination of the issue of whether the plaintiff suffered any permanent disability and that the defendants should pay those costs reasonably incurred by the plaintiffs to establish liability and the disability from which I have found the plaintiff suffered. I do not find it necessary to determine whether s13(1) of the Supreme Court Civil Procedure Act has any application as I am satisfied that even if it does this would be an appropriate case in which to order that costs be taxed in accordance with Table A in Appendix M of the Rules of the Supreme Court. In view of the time and cost which would be involved if I were to order that a taxing officer make a detailed analysis of the costs attributable to each issue I have formed the view that it would be preferable if I were to apportion costs myself. Counsel for the plaintiffs indicated that if I were to arrive at that conclusion he would seek to be heard further as to what the apportionment ought to be. I therefore make no orders at this stage but adjourn the hearing of the application.