| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 05539
| MARIN BUCIC | Plaintiff |
| v | |
| ARNEJ PTY LTD | Defendant |
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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…
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- AGLC
- Bucic v Arnej Pty Ltd (No 4) [2019] VSC 527
- Case
- [2019] VSC 527
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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