McFadzean v Construction, Forestry, Mining & Energy Union (No 2) - [2004] VSC 480

eparate areas

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7980 of 1999

BETWEEN:

GAVAN MICHAEL McFADZEAN and others (according to the schedule attached)	Plaintiffs
v
CONSTRUCTION, FORESTRY, MINING and ENERGY UNION and others (according to the schedule attached)	Defendants

AND BETWEEN:

CHRISTOPHER CLIFFORD WHEELER and others (according to the schedule attached)	Plaintiffs by Counterclaim
v
GAVAN MICHAEL McFADZEAN and others (according to the schedule attached)	Defendants by Counterclaim

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2004
DATE OF JUDGMENT:	25 November 2004
CASE MAY BE CITED AS:	McFadzean and Ors v C.F.M.E.U and Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2004] VSC 480

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Costs – Claim and Counterclaim – Multiple parties – Many causes of action pleaded on claim – Some plaintiffs successful on some causes of action against some defendants – Some plaintiffs wholly unsuccessful – Some defendants wholly successful – Few amongst many causes of action established – Plaintiffs successful on a minority of issues joined – Offers of compromise –Some successful plaintiffs obtaining by judgment less than amount offered – Single order for part costs made in favour of defendants on the claim – Acceptance of offer of compromise on Counterclaim – Whether order otherwise should be made under R. 63.24 – Delay in acceptance of offer – Costs consequences – Provision for set-off as between damages and costs.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiffs

Mr B. Walters QC,

Mr K. Mueller and

Mr S. McGregor

Howie & Maher

For the Defendants

Mr S. Howells
with Mr M. Irving

Slater & Gordon

SCHEDULE OF PARTIES

No 7980 of 1999

BETWEEN:

GAVAN MICHAEL McFADZEAN	Firstnamed Plaintiff
KRISTEN LEES	Secondnamed Plaintiff
TESSA JACKSON	Thirdnamed Plaintiff
~~DOMINIK JASKIERNIAK~~	~~Fourthnamed Plaintiff~~
DONNA GROSS	Fifthnamed Plaintiff
ALEXANDER JOHN BOWLES	Sixthnamed Plaintiff
LEIGH DWAN	Seventhnamed Plaintiff
AMY EPSTEIN	Eighthnamed Plaintiff
PAUL ANTHONY FOWKES	Ninthnamed Plaintiff
ELI GREIG	Tenthnamed Plaintiff
JULIE ANNE COLSON	Eleventhnamed Plaintiff
JANINE DAWSON	Twelfthnamed Plaintiff
- and -
CONSTRUCTION FORESTRY MINING & ENERGY UNION	Firstnamed Defendant
JANE CALVERT	Secondnamed Defendant
CHRISTOPHER CLIFFORD WHEELER	Thirdnamed Defendant
GEORGE MOLLOY	Fourthnamed Defendant
MICHAEL JOSEPH NOCERA	Fifthnamed Defendant
COLIN JOSEPH ARBUTHNOT	Sixthnamed Defendant
BARRY JOHN DENT	Seventhnamed Defendant
~~ANDREW JAMES DAFFY~~	~~Eighthnamed Defendant~~
DONALD GORDON PEARCE	Eighthnamed Defendant
DAVID REECE SHEPPARD	Ninthnamed Defendant
GARY LEON WILSON	Tenthnamed Defendant
~~PHILIP BRETT AVERY~~	~~Eleventhnamed Defendant~~
WAYNE JOHN McGEE	Twelfthnamed Defendant
BRIAN PATRICK WHEELER	Thirteenthnamed Defendant
CHARLIE PAUL NEMET	Fourteenthnamed Defendant
SHANE JOHN FLANNIGAN	Fifteenthnamed Defendant
WAYNE ANDREW BENSON	Sixteenthnamed Defendant
~~ANDREW McKAY~~	~~Seventeenthnamed Defendant~~
AND BETWEEN:
CHRISTOPHER CLIFFORD WHEELER	Firstnamed Plaintiff by Counterclaim
MICHAEL JOSEPH NOCERA	Secondnamed Plaintiff by Counterclaim
CHARLIE PAUL NEMET	Thirdnamed Plaintiff by Counterclaim
WAYNE ANDREW BENSON	Fourthnamed Plaintiff by Counterclaim
BARRY JOHN DENT	Fifthnamed Plaintiff by Counterclaim
DAVID REECE SHEPPARD	Sixthnamed Plaintiff by Counterclaim
GARY LEON WILSON	Seventhnamed Plaintiff by Counterclaim
- and -
GAVAN MICHAEL McFADZEAN	Firstnamed Defendant by Counterclaim
KRISTEN LEES	Secondnamed Defendant by Counterclaim
TESSA JACKSON	Thirdnamed Defendant by Counterclaim
THE WILDERNESS SOCIETY INC.	Fourthnamed Defendant

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

AGLC: McFadzean v Construction, Forestry, Mining and Energy Union (No 2) [2004] VSC 480
Case: [2004] VSC 480
Decision Date: 25 November 2004

CaseChat Overview and Summary

In the case of McFadzean v Construction, Forestry, Mining & Energy Union (No 2), the central dispute involved multiple parties, with numerous causes of action pleaded in the claim. The case was heard in the Federal Court of Australia. Some plaintiffs were successful in their claims against certain defendants, while others were unsuccessful across the board. Similarly, some defendants emerged victorious against some plaintiffs, but not all. The court had to navigate this complex web of interactions, determining the appropriate costs and outcomes for each party involved.

The primary legal issues before the court included the calculation of costs in a multi-party, multi-cause of action scenario, the implications of offers of compromise, and the applicability of set-off provisions between damages and costs. The court needed to decide how to apportion costs fairly among the parties, given the varied outcomes of the claims and counterclaims. It also had to consider the consequences of delays in accepting offers of compromise and the potential for set-off between damages awarded and costs incurred.

The court approached the matter by examining the proportion of success and failure across the various causes of action and parties. It concluded that while some plaintiffs were successful on a minority of the issues, the overall outcome did not warrant a comprehensive order in their favour. Instead, the court made a single order for part costs in favour of the defendants on the claim, reflecting the limited success of the plaintiffs. Additionally, the court noted the acceptance of an offer of compromise on the counterclaim and deliberated on whether it should still make an order under Rule 63.24 due to the delay in acceptance. The court also considered the potential for set-off between damages and costs, ensuring a fair and equitable distribution of financial burdens among the parties.

The final orders included the aforementioned single order for part costs in favour of the defendants, taking into account the limited success of the plaintiffs. The court also addressed the consequences of the delay in accepting the offer of compromise on the counterclaim and considered the implications for costs. Furthermore, the court provided for the set-off of damages and costs where appropriate, aiming to achieve a balanced outcome in the complex litigation.

Orders