Dooling v Australian Milling Group Pty Ltd
[2022] VCC 1270
•12 August 2022
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-05480
| MATTHEW DOOLING | Plaintiff |
| v | |
| AUSTRALIAN MILLING GROUP PTY LTD | Defendant |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the papers | |
DATE OF RULING: | 12 August 2022 | |
CASE MAY BE CITED AS: | Dooling v Australian Milling Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1270 | |
RULING
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Subject:APPEAL COSTS ACT CERTIFICATE
Catchwords: Appeal Costs Act Certificate – Adjournment of trial where witness suffered heart attack prior to commencement – Plaintiff applied for indemnity certificate pursuant to Appeal Costs Act 1998 (Vic) for the costs of adjournment – Whether adjournment of trial amounts to discontinuance – Applicability of section 10 of Appeal Costs Act 1998 (Vic) to adjournment – Meaning of ‘discontinued’ – Adjourned distinct from discontinued
Legislation Cited: Appeal Costs Act 1998 (Vic); Federal Proceedings (Costs) Act 1981 (Cth); Appeal Costs Fund Act 1973 (Qld)
Cases Cited:Re Morris and Another; Morris and Another v Maroudas and Another (1986) 66 ALR 699; Official Trustee in Bankruptcy v Forrest [2000] FCA 907; R v Khoury [2003] QDC 235; R v Lacey and Lacey [2011] QDC 194; R v Watts [2011] QDC 194
Ruling: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Richards QC with A Dimsey | Saines Lucas Solicitors |
| For the Defendant | P Scanlon QC with M Martin | IDP Lawyers |
HIS HONOUR:
1This matter came before me in November 2021 as part of the Ballarat Civil Circuit. It was a damages trial for a workplace injury. Prior to the matter commencing, the Defendant’s Counsel informed the Court that a critical witness it intended to call had suffered a heart attack. The Defendant applied to have the matter adjourned. The Plaintiff did not oppose that application. The matter was adjourned out of the list to the next circuit by consent. The Plaintiff then made an application for an indemnity certificate for his costs in respect of the adjournment pursuant to section 10 of the Appeal Costs Act 1998 (Vic) (“the Act”).
2The key issue to be determined is whether the adjournment of the trial amounts to a discontinuance of a civil proceeding in accordance with section 10. I do not find that the requirements of section 10 are fulfilled and accordingly I dismiss the Plaintiff’s application.
Background
3The Plaintiff alleged that he sustained injury in employment while attempting to lift a bundle of empty plastic grain bags. This matter was listed for trial on 23 November 2021. On 22 November 2021, it became apparent to the Defendant that a witness would give evidence in the trial of his instructions to the Plaintiff not to lift the bundles.[1] The Defendant then sought to amend its Defence during the hearing on 23 November 2021. I considered that the Defendant did not end up in this position due to a lack of diligence and I granted the Defendant leave to amend. The matter was adjourned for a mention on 25 November 2021. I made orders dated 24 November 2021 that the Defendant pay the Plaintiff’s costs thrown away by reason of this adjournment. On 25 November 2021 at the mention, it was determined that the trial would start the following day.
[1] Transcript (“T”) 4, Line (“L”) 9-18
4On 26 November 2021, the Defendant began by indicating that the witness in question had suffered a heart attack. The Defendant sought an adjournment which the Plaintiff did not oppose and the Plaintiff sought an indemnity certificate pursuant to section 10 of the Act. The trial was adjourned and refixed for hearing at the next Ballarat Circuit commencing 14 February 2022.
The Act
5Section 10 of the Act states:
“Application for indemnity certificate if civil proceeding discontinued
(1) If—
(a)the hearing of any civil proceeding is discontinued; and
(b)the reason for the discontinuance was not attributable in any way to the act, neglect or fault of any of the parties to that proceeding or their legal practitioners; and
(c) a new trial is ordered—
a party to that proceeding may apply to the court before which the proceeding is discontinued for, and the court may grant, an indemnity certificate in respect of the party's own costs of the discontinued proceeding …”
6Section 3 of the Act provides an inclusionary definition of discontinued as follows:
“ "discontinued", in relation to a civil or criminal proceeding, includes discontinued because of—
(a) the death or illness of a judge or magistrate hearing the proceeding; or
(b) a disagreement on the part of the jury …”
7In respect of criminal proceedings, section 16 mirrors the wording of section 10 and enables a Court to grant an indemnity certificate where a criminal proceeding is discontinued. However the Act also makes provision in section 17 for an indemnity certificate to be awarded where a criminal matter is adjourned. It is clear from the drafting of the Act that there is a distinct lack of provision for indemnity certificates in adjournments in civil proceedings as compared with adjournments in criminal proceedings.
8I note that unlike the Act, the equivalent provisions of Federal Proceedings (Costs) Act 1981 (Cth) and the Appeal Costs Fund Act 1973 (Qld) which I refer to below both do not include separate provisions specifically allowing the provision of a certificate where adjournments arise in criminal proceedings. This suggests that in respect of the Victorian legislation, Parliament intended to distinguish between the terms ‘discontinued’ and ‘adjourned’ in the Act.
Extrinsic Material
9The Second Reading Speech states the Act was designed to apply to “a small number of cases (where) it is necessary to have a re-hearing because the original hearing was aborted or discontinued: for example, because the jury had to be discharged.”[2] The focus then is squarely on the necessity of a rehearing. It does not contemplate matters which are adjourned and relisted. I consider that the plain meaning of the word ‘rehearing’ points toward a scenario where issues previously heard before a court are presented afresh, as opposed to the delayed commencement of the presentation of issues not previously heard before a court.
[2] Second Reading Speech, Appeal Costs Bill (Vic) 1998 at 458
Case Law
10Turning now to consider the body of case law. As indicated above, there exists a body of case law considering equivalent provisions in the Federal Court and Queensland District Court.
11In Re Morris and Another,[3] Muirhead J did not award a costs certificate pursuant to section 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) where an adjournment was granted due to one party not having received notice of the hearing date of an application before its commencement. His Honour commented that “had the legislature intended to cover adjournments it would surely have inserted the words “or adjourned”, or “adjournment” after the words “discontinued” and “discontinuance” respectively in s 10(3).”[4]
[3] Re Morris and Another; Morris and Another v Maroudas and Another (1986) 66 ALR 699 (“Re Morris”)
[4] Re Morris at 701
12In Official Trustee in Bankruptcy v Forrest (“Official Trustee”),[5] Kiefel J followed the reasoning of Muirhead J. Her Honour added that the distinction between discontinued proceedings and adjourned proceedings is that the former is likely to involve costs entirely wasted due to proceedings being started afresh whereas the latter is unlikely to involve substantial costs being entirely duplicated.[6]
[5] [2000] FCA 907 (“Official Trustee”)
[6] Official Trustee at [6]
13The Queensland District Court has also followed this reasoning. In R v Khoury,[7] Hoath DCJ followed the reasoning of Kiefel J in Official Trustee and did not award an Indemnity Certificate pursuant to section 22(1)(c) of the Appeal Costs Fund Act 1973 (Qld) where an adjournment of a criminal trial was granted due to unavailability of witnesses.[8]
[7] [2003] QDC 235
[8] R v Khoury at [22]
14In R v Lacey and Lacey,[9] Rafter SC DCJ did not award an Indemnity Certificate where solicitors had made an application to adjourn the trial on the morning the trial was due to commence. His Honour considered that the provision did not apply to the adjournment of a trial and that where the trial had not commenced, it could not be said to have been discontinued.[10]
[9] [2009] QDC 303 (“R v Lacey and Lacey”)
[10] R v Lacey and Lacey at [21]-[22]
15Most analogous to the facts of the matter at hand is R v Watts,[11] in which Rackemann DCJ refused to award an Indemnity Certificate where an adjournment was granted on the morning the trial was due to commence due to an essential witness being unable to attend due to a recent illness. These three decisions of the Queensland District Court, while not binding, are persuasive.
[11] [2011] QDC 194
Findings
16The body of case law above determines that Parliament intended to distinguish adjournments from the discontinuance of proceedings in respect of the provisions enabling indemnity costs certificates to be awarded in the Federal and Queensland jurisdictions. Considering the similarity of section 10(1)(b) of the Act, I find that this reasoning is to be applied and that the Plaintiff not be granted an indemnity costs certificate for the adjournment, being an event prior to the commencement of the trial.
17For the reasons set out above, I dismiss the Plaintiff’s application.
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