JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2019
DATE OF RULING:	13 August 2019
CASE MAY BE CITED AS:	Bucic v Arnej Pty Ltd (No 4)
MEDIUM NEUTRAL CITATION:	[2019] VSC 527

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PRACTICE AND PROCEDURE – Application by third party to reopen proceeding – Proceeding dismissed by consent on the day fixed for trial – Orders regular and perfected – Whether inherent jurisdiction – Whether exceptional circumstances – Bailey v Marinoff (1971) 125 CLR 529; Lollis v Loulatzis (No 3) [2008] VSC 231 followed.

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APPEARANCES:	Counsel	Solicitors
For the Defendant	Mr S A Smith QC	Moray & Agnew
For the Third Party	Ms R Annesley QC with Mr D Myers	Meridian Lawyers

HER HONOUR:

This ruling assumes familiarity with my principal reasons for judgment in this proceeding delivered on 20 May 2019.[1] In brief compass, the substantive proceeding concerned a self-employed brick cleaner, who fell approximately four-and-a-half metres from a raised scaffolding bay on to a pile of discarded bricks. The defendant, Arnej Pty Ltd, was the sole-trader responsible for the construction of the house on the building site. The scaffolding was erected by a hire company, C & N Scaffolding Hire Pty Ltd, which was joined as a third party to the proceeding.
[1]Bucic v Arnej Pty Ltd [2019] VSC 330 (‘Principal Reasons’).

The evidence is that the defendant and the third party reached a negotiated settlement on 15 February 2019. On 18 February 2019, the day fixed for trial, I pronounced orders that the proceeding as between the defendant and the third party be dismissed by consent with no order as to costs. The trial then ran for a total of 12 sitting days. The jury was discharged on day four of the trial because of an impermissible prejudice that arose out of cross-examination of the plaintiff.[2]
[2]Transcript of Proceedings, Bucic v Arnej Pty Ltd (Supreme Court of Victoria, Zammit J, 21 February 2019) 264-8 (‘T’).

On 20 May 2019 I entered judgment for the plaintiff and heard the parties on costs. I was informed that the third party wished to be heard on costs despite no longer being a party to the proceeding. Counsel for the third party submitted that, in furtherance of the Civil Procedure Act 2010, I should order that the third party’s costs be limited to 21 per cent of $550,000. It was said that the defendant had gone off on a frolic of its own and contested the matter when the third party had no appetite for litigation. Senior counsel for the defendant replied that the third party had no standing in the proceeding and that, as such, the Court was functus officio.

I adjourned the third party’s application until such time as I had ruled on costs as between the plaintiff and the…

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.

Continue reading Bucic v Arnej Pty Ltd (No 4)

Details

AGLC: Bucic v Arnej Pty Ltd (No 4) [2019] VSC 527
Case: [2019] VSC 527
Decision Date: 13 August 2019

CaseChat Overview and Summary

The parties involved in the case are Bucic and Arnej Pty Ltd. The nature of the dispute concerns an application by a third party to reopen a proceeding that was dismissed by consent on the day fixed for trial. The matter was heard in the Supreme Court of Victoria. The legal issues the court was required to decide involved whether the court had the inherent jurisdiction to reopen the proceeding and whether there were exceptional circumstances present that would warrant such a reopening.

The court considered the relevant legal principles in determining whether it had the inherent jurisdiction to reopen the proceeding. It referred to the case of Bailey v Marinoff and Lollis v Loulatzis (No 3) to establish the criteria for exceptional circumstances. The court found that the orders made regular and perfected were not in themselves exceptional circumstances that would warrant reopening the proceeding. The court also found that the inherent jurisdiction was not to be exercised lightly and only in the most compelling circumstances. The court held that there were no exceptional circumstances present in this case to warrant reopening the proceeding.

The court dismissed the application to reopen the proceeding. The court found that the applicant had not demonstrated any exceptional circumstances that would warrant the reopening of the proceeding. The court held that the inherent jurisdiction should not be exercised lightly and only in the most compelling circumstances. The court found that the orders made regular and perfected were not in themselves exceptional circumstances that would warrant reopening the proceeding.

The final orders of the court were that the application to reopen the proceeding was dismissed. The court found that there were no exceptional circumstances present to warrant reopening the proceeding. The court held that the inherent jurisdiction was not to be exercised lightly and only in the most compelling circumstances. The court found that the orders made regular and perfected were not in themselves exceptional circumstances that would warrant reopening the proceeding.

Orders