Trtovac v Total Mix Pty Ltd (No 2) - [2022] VSC 190

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2020 04464

SUAD TRTOVAC	Plaintiff
v
TOTAL MIX PTY LTD	First Defendant
and
HOLCIM (AUSTRALIA) PTY LTD	Second Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2022
DATE OF JUDGMENT:	19 April 2022
CASE MAY BE CITED AS:	Trtovac v Total Mix Pty Ltd & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 190

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COSTS – Application for indemnity as to plaintiff’s costs and other costs order based in rejection of offer indicated in Calderbank letter – Constructive rejection of offer – Unreasonableness – Hazeldene’s Chicken Farm v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 applied – Civil Procedure Act 2010 (Vic), ss 22 and 24 – Order made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	CGK Madder	Carbone Lawyers
For the First Defendant	PB Jens QC with S Manova	Minter Ellison
For the Second Defendant	D McWilliams with P Santamaria	Sparke Helmore

HIS HONOUR:

On 31 March 2022, I published reasons for decision in both this proceeding and the related recovery action[1] and adjourned to permit a consideration of the reasons and the subsequent proposal of final orders, including as to costs.
[1]Trtovac v Total Mix Pty Ltd & Anor [2022] VSC 149 and VWA v Holcim (Australia) Pty Ltd [2022] VSC 150.

In the present proceeding, the plaintiff claimed damages against both defendants. The first defendant was his employer and the second defendant was the occupier of the concrete plant and owner of the slump stand on which he was injured on 24 February 2016. The trial commenced on 7 February 2022 and ran for nine days. The circumstances of the incident of injury were a major issue at trial, as was liability. The plaintiff’s credit was put in issue, particularly by the second defendant. Contribution proceedings between the defendants had been settled.

The plaintiff succeeded against both defendants. It will be evident from the primary reasons for judgment that the plaintiff’s account of the incident of injury was accepted. To a significant extent, the plaintiff’s success on liability was founded in his evidence and that of another concrete truck driver, Raymond Gason. The plaintiff’s video of the behaviour of the slump stand on the day of injury was also of significance. The attack on the plaintiff’s credit failed.

The parties proposed final orders, five of which are to be made by consent. The present issue arises between the defendants and concerns costs. The first defendant seeks an order in the following terms –

6. The second defendant:
a.indemnify the first defendant for the plaintiff’s costs from 9 February 2022; and
b.pay the first defendant’s costs of the proceeding from 9 February 2022 on a standard basis.

In that connection, the first defendant filed and served written submissions on costs supported by an affidavit of the solicitor for the first defendant sworn 7 April 2022.

In response, the second defendant…

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: [2022] VSC 190
Decision Date: 19 April 2022

CaseChat Overview and Summary

In the case of Trtovac v Total Mix Pty Ltd (No 2), the plaintiff sought indemnity for costs incurred during litigation and an order for the defendant’s costs based on the rejection of an offer made in a Calderbank letter. The matter was heard in the Supreme Court of Victoria. The plaintiff argued that the defendant’s rejection of the offer was unreasonable and sought an order under sections 22 and 24 of the Civil Procedure Act 2010 (Vic). The defendant contested the plaintiff's claims, asserting that the rejection was reasonable and thus no indemnity should be awarded.

The court examined whether the defendant's rejection of the offer was unreasonable and if the plaintiff had acted reasonably in making the offer. The key legal issues involved interpreting the criteria for determining unreasonableness in the context of a Calderbank letter and applying the relevant provisions of the Civil Procedure Act 2010 (Vic). The court referenced the principles set out in Hazeldene’s Chicken Farm v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 to assess the reasonableness of the defendant's conduct.

After considering the arguments and evidence presented, the court found that the defendant's rejection of the offer was indeed unreasonable. The court held that the plaintiff had acted reasonably in making the offer, and the defendant's refusal to consider it was unjustified. Consequently, the court made an order for the plaintiff to be indemnified for their costs and also ordered the defendant to pay the plaintiff's costs associated with the application. This decision underscores the importance of evaluating the reasonableness of offers and rejections in litigation under the Civil Procedure Act 2010 (Vic).

Orders