Markovic v Unified Security Group (Australia) Pty Ltd - [2021] VSC 840

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GROUP PROCEEDINGS LIST

S ECI 2020 03679

DRAGAN MARKOVIC	Plaintiff
v
UNIFIED SECURITY GROUP (AUSTRALIA) PTY LTD (ACN 138 976 397)	First Defendant
MSS SECURITY PTY LTD (ACN 100 573 966)	Second Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF WRITTEN SUBMISSIONS:	29 November 2021
DATE OF JUDGMENT:	16 December 2021
CASE MAY BE CITED AS:	Markovic v Unified Security Group (Australia) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 840

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PRACTICE AND PROCEDURE – Group Proceeding – Approval of discontinuance of proceeding – Where no tenable cause of action against second defendant – Where approved notice of proposed discontinuance not given to group members – Supreme Court Act 1986 (Vic) ss 33V, 33X.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with Mr A Fraatz	Arnold Thomas & Becker

TABLE OF CONTENTS

The application................................................................................................................................... 2

Confidentiality................................................................................................................................... 2

Applicable principles........................................................................................................................ 3

Relevant circumstances..................................................................................................................... 5

Other matters...................................................................................................................................... 9

HIS HONOUR:

The application

In this proceeding, the plaintiff claims damages for himself and group members as a consequence of personal injury or death from infection with COVID-19 during the period from May 2020 to October 2020 (‘Period’) caused by breaches of duty owed by the first defendant, Unified Security Group (Australia) Pty Ltd (‘Unified’) in failing to eliminate or reduce the risk that COVID-19 was spread from returning travellers at Rydges Hotel into the community, and the second defendant, MSS Security Pty Ltd (‘MSS’) in failing to eliminate or reduce the risk that COVID-19 was spread from returning travellers at Stamford Plaza Hotel into the community.

By summons the plaintiff now seeks orders, pursuant to s 33V of the Supreme Court Act 1986 (Vic) (‘Act’), that the court approve the discontinuance of the proceeding against MSS, with no order as to costs.

The summons was supported by an affidavit affirmed by the plaintiff’s solicitor, Kim Price. I also considered written submissions prepared by counsel for the plaintiff. Mr Price exhibited to his affidavit a confidential opinion prepared by counsel.

Confidentiality

The plaintiff sought an order, pursuant to s 33ZF of the Act, that Mr Price’s affidavit and its exhibits not be published or disclosed to any person without further order of the court. The basis for this application, which is not uncommon in applications of this sort, was that the plaintiff considered confidentiality to be necessary and appropriate for the following reasons:

(a) Mr Price’s affidavit and the opinions of counsel referred to below, contain matters that, if disclosed, may be prejudicial to the claims of the plaintiff and group members and, conversely, advantageous to the second defendant, in the event that the court does not approve the discontinuance;

(b) the matters in this affidavit are based on material and/or advice that was communicated to Mr Price or his firm by the plaintiff and group members in circumstances protected by legal professional privilege;

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] VSC 840
Decision Date: 16 December 2021

CaseChat Overview and Summary

Markovic and others brought a group proceeding against Unified Security Group (Australia) Pty Ltd and others. The dispute involved allegations of breaches of contract and duty of care in the provision of security services. The case was heard in the Supreme Court of Victoria. The primary legal issues before the court were whether the discontinuance of the proceeding against the second defendant was appropriately approved and whether the requirement to provide an approved notice to the group members was complied with. Specifically, the court had to determine if the discontinuance was justified and if the procedural requirement under the Supreme Court Act 1986 (Vic) sections 33V and 33X was satisfied.

The court found that the discontinuance against the second defendant was justified as there was no tenable cause of action against them. However, it was noted that the plaintiff failed to provide an approved notice of the proposed discontinuance to the group members, as required by statute. Despite the discontinuance being justified, the court held that the procedural oversight was significant, as it impacted the group members' right to be informed and potentially challenge the discontinuance. The court emphasised the importance of procedural compliance in group proceedings to ensure fairness and transparency.

Ultimately, the court concluded that the discontinuance against the second defendant was approved but highlighted the procedural error. The court's decision acknowledged the justification for discontinuance but underscored the need for strict adherence to procedural requirements. The court's ruling did not dismiss the proceeding but mandated that the procedural steps must be followed correctly in future actions.

Orders