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Gamboni v Bendigo and Adelaide Bank Ltd

Gamboni v Bendigo and Adelaide Bank Ltd

Case [2013] VSCA 282 11 October 2013

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Appeal

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Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2011 0207

WILLIAM BERNARD GAMBONI	Appellant
	v
BENDIGO AND ADELAIDE BANK LTD ACN 068 049 178	Respondent

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JUDGES	TATE JA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 September 2013
DATE OF JUDGMENT	11 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 282
JUDGMENT APPEALED FROM	Gamboni v Bendigo and Adelaide Bank Ltd [2011] VCC 1442, Judge Ginnane

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PRACTICE AND PROCEDURE — Slip rule — Inherent jurisdiction of the Court to make a supplemental order — Appeal from a judgment of the County Court — Through inadvertence, counsel for the appellant did not inform the Court of Appeal, when the Court made a costs order consequent upon allowing the appeal, of the making of an offer of compromise prior to the trial below — After the costs order was entered, the appellant sought an order under r 26.08(2)(b) of the County Court Civil Procedure Rules 2008 that the respondent pay costs of the County Court proceeding on an indemnity basis for costs incurred after the day the offer of compromise was made — Slip rule inapplicable because real differences of opinion could exist on the issues raised — Inherent jurisdiction of the Court inapplicable because the order sought would vary rather than merely supplement the existing order for costs — Certificates granted for counsel’s fees for the trial below — Supreme Court (General Civil Procedure) Rules 2005 r 36.07.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr G H Golvan QC	Gary Rothville & Associates
For the Respondent	Mr C E Shaw	Hall & Wilcox

TATE JA
KYROU AJA:

Introduction and summary

On 2 May 2013, this Court[1] published its reasons for allowing an appeal from a judgment of a County Court Judge[2] in a proceeding in which the appellant, William Gamboni, was the plaintiff and his former employer, Bendigo and Adelaide Bank Ltd, was the defendant (‘Principal Judgment’).[3]
[1]The Court comprised Harper and Tate JJA and Kyrou AJA. Harper JA has since retired and, accordingly, the application the subject of this judgment has been heard by Tate JA and Kyrou AJA pursuant to a determination of the President under s 11(1A) of the Supreme Court Act 1986.
[2]The decision below is Gamboni v Bendigo and Adelaide Bank Ltd [2011] VCC 1442 (Judge Ginnane).
[3]The Principal Judgment is Gamboni v Bendigo and Adelaide Bank Ltd [2013] VSCA 92.

The proceeding below concerned a claim by the appellant under the respondent’s redundancy policy (‘Policy’). The Policy defined ‘redundancy’ relevantly as follows:

‘Redundancy’ means a situation where the work being done or position held by an employee, or a major portion of it is no longer required:
a as a result of changes in economic or business conditions; or
…
cbecause of reorganisation (whether internal, external, group wide or at Business Unit level); or

d because of changes to business or management practices …

In the proceeding below, and on the hearing of the appeal, the appellant…

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 Gamboni v Bendigo and Adelaide Bank Ltd

Details

AGLC: Gamboni v Bendigo and Adelaide Bank Ltd [2013] VSCA 282
Case: [2013] VSCA 282
Decision Date: 11 October 2013

CaseChat Overview and Summary

In the case of Gamboni v Bendigo and Adelaide Bank Ltd, the appellant, Gamboni, sought an order under r 26.08(2)(b) of the County Court Civil Procedure Rules 2008, requesting that the respondent, Bendigo and Adelaide Bank Ltd, pay costs of the County Court proceeding on an indemnity basis for costs incurred after the day an offer of compromise was made. This appeal followed the Court of Appeal allowing Gamboni's appeal against the County Court's judgment and ordering that Bendigo and Adelaide Bank Ltd pay costs of the appeal. Gamboni's counsel had inadvertently failed to inform the Court of Appeal of the offer of compromise prior to the trial in the County Court.

The central legal issue before the Court was whether the slip rule or the inherent jurisdiction of the Court could be invoked to make a supplemental order, given that Gamboni's counsel had neglected to disclose the offer of compromise. The slip rule, which allows for corrections of errors made through inadvertence, accident, or mistake, was considered by the Court. Additionally, the inherent jurisdiction of the Court, which permits it to make orders necessary to ensure justice is done, was also examined. The Court had to determine if either of these legal principles could be applied to allow for the supplemental order Gamboni sought.

The Court held that the slip rule was inapplicable in this case, as real differences of opinion could exist on the issues raised by Gamboni's failure to disclose the offer of compromise. The inherent jurisdiction of the Court was also deemed inapplicable, as the order sought would vary rather than merely supplement the existing order for costs. Consequently, the Court dismissed Gamboni's application for a supplemental order. However, the Court did grant certificates for counsel's fees for the trial below, in accordance with Supreme Court (General Civil Procedure) Rules 2005 r 36.07.

The Court made no further orders beyond the granting of certificates for counsel's fees for the trial below, thus concluding the appeal proceedings. The Court of Appeal's original costs order remained in place, and no supplemental order was issued to alter the payment of costs by Bendigo and Adelaide Bank Ltd.

Orders