Abdelkawy v ANL Container Line Pty Ltd

[2021] VSCA 365

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0020

AMRO ABDELKAWY	Applicant
v
ANL CONTAINER LINE PTY LTD	Respondent

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JUDGES:	BEACH and OSBORN JJA and FORBES AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	21 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 365

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COSTS – Application for leave to appeal – Not open to reagitate issues properly the subject of the application for leave to appeal itself – Application for leave to appeal hopeless – Respondent entitled to costs. 

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Ibrahim	Wise Legal Solutions Pty Ltd
For the Respondent	Mr G A Worth	Thomson Geer

BEACH JA
OSBORN JA
FORBES AJA:

1. In this matter the respondent seeks its costs on a standard basis reflecting its success on the application for leave to appeal.[1] 

   [1]Oshlack v Richmond River Council (1998) 193 CLR 72, 97–8 (McHugh J); 124 (Kirby J); Chen v Chan [2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA).

1. The applicant opposes an order for costs against him and seeks an order for his own costs (both of the application for leave to appeal and the trial itself) on the basis of alleged irregularity in the process of production of the court book for trial and alleged irregularity in discovery before trial. 

1. The material relied on is that filed in support of the fresh evidence application to which we referred in our principal reasons.[2] 

   [2][2021] VSCA 342, [50].

1. The applicant’s submissions on costs identify three categories of documents.  It is submitted that the respondent:

a.Failed to enter documents into the court book with respect to those mentioned in subparagraphs (a) – (c) and (e) – (f)[3] which evidence:  acts ostracizing the Applicant;  contemporaneous accounts of the Applicant’s health;  false records of the Applicant’s absence from work;  that the Applicant was not provided with required training;   and recent medical reports highlighting the extent of the Applicant’s injury.

b.Entered a discovered document to the detriment of the Applicant as referred to in subclause (d) without informing the Applicant of that change;  and

c.Failed to discover a document that evidenced that the Applicant was wrongfully subjected to a process of redundancy that resulted in the termination of his employment.[4] 

[3]Fresh evidence application dated 12 October 2021. 

[4]Applicant’s submissions on costs dated 13 December 2021 [5].

1. We do not have the benefit of a full transcript of the trial in this matter but as we understand it there is no dispute that the documents in categories (a) and (b) were in fact produced at trial and were capable of being addressed in oral evidence and made the subject of submissions insofar as they were of any relevance. 

1. Insofar as the document in category (c) is concerned, it was both tendered in evidence and the subject of submission.  It is quoted in the trial judge’s reasons[5] at [15] which we will quote in context:

   [5]Abdelkawy v ANL Container Line Pty Ltd [2020] VCC 2024.

14In June 2009, Ms Callus was transferred to the Export Customer Service.  Even though the defendant lost Djakarta Lloyd as a client, the defendant needed to complete outstanding work.  Since Ms Callus did the Djakarta Lloyd work, the burden of that work was taken by Mr Abdelkawy, while also retaining the Toyofuji work.  He became very busy and asked Mr Fry for help but received none.

15Apart from Mr Fry, with the transfer of Ms Callus, Ms Zhang and Mr Abdelkawy were left in the section.  The decision was made to retain one of the two.  What the remaining person would do is explained in an email from Ms Toussat to Mr Lines on 9 June 2009.  In part, it said:

I met with Alex [Sismanis] today and further to my email sent to you on Friday, there is a requirement to retain 1 person in Melbourne to handle Imports and Exports Documentation for Toyofuji.  Whilst the role might not be 1FTE, it is close to 0.6 0.7 FTE.  If we include this person in Alex’s team we will also benefit from being able to provide support and backup when the person goes on leave, as Krista who previously worked for DJL has joined Alex’s team at the start of the month.

The way we would handle this 1 role, will be to ask Amro [Mr Abdelkawy] and Helen [Ms Zhang] to apply for the role.  HR will then take them through the normal internal recruitment process and one person will be made redundant at the end of June.

This means that Customer Service headcount will go up by 1 more headcount.

16As can be seen, the successful applicant would become part of Export Customer Services, handling the Toyofuji work with imprecise support and backup.  Essentially, it was an appointment to the Export Customer Services, focussed mainly on the Toyofuji work.

1. The matters of which the applicant complains have not been shown to result in any ultimate want of procedural fairness or evidentiary deficiency either in the trial or the application for leave to appeal. 

1. For completeness, we add that while the last mentioned document does form part of the relevant historical narrative, none of the documents referred to establish victimisation of the applicant, either in themselves or when considered in the context of the evidence as a whole.  Nor do they go to the fundamental difficulty with respect to the issue of duty of care, which we have sought to explain in our principal reasons. 

1. The application for leave to appeal contained no separate ground directed to the trial judge’s decision with respect to costs.  Moreover, we do not have the transcript of the costs hearing nor any other record of the trial judge’s reasons for the costs orders which he made.  Further and unsurprisingly, the decision as to the costs of the trial was not the subject of separate submissions in the applicant’s written case nor the subject of oral submission to this Court.  The issue of the costs of the trial cannot now be reagitated.  For completeness however, we record that none of the matters now relied on cause us to have any doubt as to the correctness of the trial judge’s decision as to costs. 

1. Insofar as the costs of the application for leave to appeal are concerned, we do not doubt that the applicant suffers genuine subjective beliefs of persecution, but viewed objectively the matters relied upon with respect to costs do not disentitle the respondent from the usual consequence which would flow from success upon the application for leave to appeal. 

1. The matters raised by the applicant do not go to the conduct of the application for leave to appeal itself and for the reasons we have previously expressed, that application was hopeless. 

1. The applicant will be ordered to pay the respondent’s costs of the application for leave to appeal including reserved costs on a standard basis. 

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