Opal Packaging Australia Pty Ltd v Orora Ltd (No 2) - [2024] VSC 108

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2023 02183

OPAL PACKAGING AUSTRALIA PTY LTD (ACN 636 682 883)	Plaintiff
v
ORORA LTD (ACN 004 275 165) (and others according to the attached Schedule)	Defendants

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JUDGE:	Waller J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers upon receipt of written submissions from the Plaintiff and Defendants both dated 7 March 2024
DATE OF RULING:	14 March 2024
CASE MAY BE CITED AS:	Opal Packaging Australia Pty Ltd v Orora Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 108

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PRACTICE AND PROCEDURE – Costs – General rule that costs follow event – Whether plaintiff unsuccessful if proceeding is adjourned – Whether plaintiff seeking indulgence – General rule that costs follow event not displaced – Appropriate in circumstances that defendants pay plaintiff’s costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Lancaster SC D Hume	Herbert Smith Freehills
For the Defendants	HNG Austin KC JA Findlay	Baker McKenzie

HIS HONOUR:

On 4 March 2024 I published my reasons in this matter[1] and made orders adjourning the proceeding until 4 September 2024 or further order, otherwise dismissing the Plaintiff’s summons and dismissing the Defendants’ summons.
[1]Opal Packaging Australia Pty Ltd v Orora Ltd (Ruling) [2024] VSC 81.

At [90] I said:

As Opal has succeeded on its application and Orora has been unsuccessful on their application, I am inclined to order that the Defendants pay the Plaintiff’s costs of the applications having regard to the usual rule that costs follow the event. As there may be circumstances of which I am unaware that would displace the usual rule, the parties are asked to confer and either submit a consent minute in respect of the appropriate costs order or, failing agreement, an outline of submissions of no more than 3 pages identifying the precise costs order sought and why it should be made. I propose to resolve the issue of costs on the papers.

The parties have been unable to agree on appropriate costs orders and have filed short submissions identifying the costs orders they seek.

Pursuant to s 24(1) of the Supreme Court Act 1986, the Court has a broad discretion in relation to costs.

In Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) the Court of Appeal stated:

In exercising its discretion, the Court is entitled to look to the realities of the litigation and it will attempt to do ‘substantial justice’ between the parties. Accordingly, while the general position is that costs should follow the event, such an order may not be appropriate in every case. In particular, where there is a multiplicity of issues, and mixed success has been enjoyed by the parties, the Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis.[2]

[2][2022] VSCA 252, [12] (McLeish, Niall and Walker JJA) (citations omitted).

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: [2024] VSC 108
Decision Date: 14 March 2024

CaseChat Overview and Summary

In the matter of Opal Packaging Australia Pty Ltd versus Orora Ltd (No 2), the Federal Court of Australia was presented with a dispute concerning costs in the context of litigation. The plaintiff, Opal Packaging Australia, had filed a proceeding against Orora Ltd, which was subsequently adjourned. The crux of the matter revolved around the principles governing the allocation of costs in cases where proceedings are adjourned, specifically whether the plaintiff, having been unsuccessful in the sense of the case being adjourned, is entitled to seek an indulgence in the form of the defendants paying their costs.

The court was tasked with determining the application of the general rule that costs follow the event, and whether this rule is displaced when a plaintiff is unsuccessful in the sense of the proceedings being adjourned. The plaintiff argued that despite the adjournment, the case had progressed to a point where an indulgence should be granted, thus allowing for the defendants to pay the plaintiff's costs. The defendants, on the other hand, contended that the adjournment signified a failure on the part of the plaintiff to achieve a result, thereby maintaining that the plaintiff should bear their own costs.

The court deliberated on the established principles of costs in litigation and found that the general rule remains applicable, where costs follow the event. However, the court recognised the exceptional circumstances where an adjournment, particularly if it is due to the plaintiff's failure to adequately prepare or present their case, could warrant an indulgence. In this instance, the court deemed it appropriate for the defendants to pay the plaintiff's costs, considering the circumstances leading to the adjournment. The court balanced the need to adhere to the general rule with the need to ensure justice is served, and found that in this specific case, the defendants should bear the costs incurred by the plaintiff up to the point of adjournment.

The final orders of the court directed that Orora Ltd pay the costs of Opal Packaging Australia Pty Ltd up to the date of the adjournment. This decision underscores the nuanced application of the general rule regarding costs, where exceptional circumstances can lead to a departure from the norm, ensuring that justice is served in a manner that reflects the realities of the case.

Orders