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:

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).

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.

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].

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].

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.

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…

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: [2021] VSCA 365
Decision Date: 21 December 2021

CaseChat Overview and Summary

In the case of Abdelkawy v ANL Container Line Pty Ltd, the plaintiff, Mr Abdelkawy, sought leave to appeal against a decision of the Federal Court of Australia that dismissed his claim for damages arising from an alleged breach of contract and tortious liability by the defendant, ANL Container Line Pty Ltd. The Federal Court, in turn, dismissed the plaintiff's application for leave to appeal and ordered him to pay the defendant's costs. The plaintiff subsequently applied for leave to appeal against the costs order, which was also dismissed.

The central legal issue before the court was whether the plaintiff's application for leave to appeal against the costs order could be heard, given that it involved re-arguing issues that were already determined in the earlier application for leave to appeal. The court had to determine whether it was appropriate to allow the plaintiff to revisit these issues, which were already found to be without merit. Another issue was whether the plaintiff's application for leave to appeal against the costs order was hopeless and whether the defendant was entitled to costs.

The court held that the plaintiff's application for leave to appeal against the costs order was not open to re-agitate issues that were already properly the subject of the application for leave to appeal itself. The court found that the issues raised in the plaintiff's application were without merit and that the plaintiff's application for leave to appeal was hopeless. The court further held that the plaintiff's application for leave to appeal against the costs order was also hopeless and that the defendant was entitled to costs. The court dismissed the plaintiff's application for leave to appeal against the costs order and ordered the plaintiff to pay the defendant's costs.

Orders