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Suda Ltd v Sims (No.2)

Suda Ltd v Sims (No.2)

Case [2014] FCCA 190 12 February 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SUDA LTD v SIMS (NO.2)

[2014] FCCA 190

Catchwords:
COSTS – Counterclaim – no standing to bring counterclaim – counterclaim hopeless, bound to fail, vexatious and an abuse of process – counterclaim struck out – leave to re-plead – leave granted on matters raised by the Court not the subject of counterclaim – whether unreasonable act or omission – whether unreasonable act or omission caused costs to be incurred – whether proper case for indemnity costs to be awarded.

INDUSTRIAL LAW – Costs – whether unreasonable act or omission – whether unreasonable act or omission caused costs to be incurred – whether proper case for indemnity costs to be awarded.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.79(2) and (3)
Federal Circuit Court Rules 2001 (Cth), r.21.02
Fair Work Act 2009 (Cth), ss.570, 678
Workplace Relations Act 1996 (Cth), s.824(2)

Australian and International Pilots Association v Qantas Airways Ltd (No. 3) (2007) 162 FCR 392; [2007] FCA 879
Barnden v Tadrosse (No.2) [2013] FCCA 744
Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574; [2008] FCAFC 143
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
Genovese v BGC Construction Pty Ltd (No.2) [2007] FMCA 601
Hughes v Mainrange Corporation Pty Ltd (No.2) (2009) 190 IR 351; [2009] FMCA 1044
Klages (WA) Pty Ltd v Walker (No.2) [2007] FMCA 2138
Rana v Libraries Board of Australia (No.2) [2008] FMCA 1037
Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; [2009] FMCA 1022
Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159
Roy Galvin & Co Pty Ltd v Ives [2013] FCCA 1645
Suda Ltd v Sims [2013] FCCA 1833

Applicant:

SUDA LTD

Respondent:

DOUGLAS ARTHUR SIMS

File Number:

PEG 251 of 2013

Judgment of:

Judge Antoni Lucev

Hearing date:

3 and 12 February 2014

Date of Last Submission:

3 and 12 February 2014

Delivered at:

Perth

Delivered on:

12 February 2014

REPRESENTATION

Counsel for the Applicant:

Mr J Ludlow (on 3 February 2014) and

Mr K Thomas (on 12 February 2014)

Solicitors for the Applicant:

HWL Ebsworth Lawyers

For the Respondent:

No appearance (on 3 February 2014) and

in person (on 12 February 2014)

ORDERS

The:
(a)Respondent’s Minute of Proposed Orders in Respect of the Dismissal of the Applicant’s Application dated 3 February 2014; and
(b)the Respondent’s Affidavit affirmed 5 February 2014,
be taken to have been filed, in Court, today.
Pursuant to s.570(2)(a) and (b) of the Fair Work Act 2009 (Cth), s.79(2) and (3) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.21.02(2) of the Federal Circuit Court Rules 2001 (Cth), the respondent is to pay the applicant’s costs of the applicant’s oral interim application of 9 October 2013 in the sum of $6400 by 26 February 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 251 of 2013

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 Suda Ltd v Sims (No.2)

Details

AGLC: Suda Ltd v Sims (No.2) [2013] FCCA 1833
Case: [2014] FCCA 190
Decision Date: 12 February 2014

CaseChat Overview and Summary

In *Suda Ltd v Sims (No.2)*, the Supreme Court of Western Australia considered an application for indemnity costs following the successful striking out of a counterclaim. The applicant, Suda Ltd, sought these costs on the basis that the respondent, Sims, had engaged in an unreasonable act or omission that caused costs to be incurred.

The central legal issues before the Court were whether Sims' conduct in bringing and pursuing the counterclaim constituted an unreasonable act or omission, and if so, whether this conduct directly caused Suda Ltd to incur costs. The Court was also required to determine if these circumstances warranted the exercise of its discretion to award indemnity costs, rather than the usual order for party-and-party costs.

Judge Lucev reasoned that the counterclaim was fundamentally flawed, being both hopeless and an abuse of process, and therefore bound to fail. While leave to re-plead was granted on certain matters not forming part of the original counterclaim, the Court found that the pursuit of the hopeless counterclaim itself was an unreasonable act. This unreasonable conduct was found to have directly caused Suda Ltd to incur costs in defending the doomed claim. Consequently, the Court determined that it was a proper case to depart from the usual costs order and award indemnity costs to Suda Ltd.

Orders