Vict v CFMMEU (Ruling No 3) - [2021] VSC 16

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S CI 2017 04871

VICTORIA INTERNATIONAL CONTAINER TERMINAL (T/A VICT)	Plaintiff
v
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION	Defendant

---

JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2020
DATE OF RULING:	28 January 2021
CASE MAY BE CITED AS:	VICT v CFMMEU (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 16

---

COSTS – Delay in prosecuting the proceeding – Inordinate delay of almost one and a half years – No proper explanation for the delay – General prejudice – No specific prejudice occasioned by the delay – Wasted costs – Wasted solicitor’s costs in reviewing the file after the inordinate delay – Counsel’s costs considered in costs of, incidental to and occasioned by the defendant’s summons – Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 – Gippsreal Ltd v Kenny (2016) 52 VR 149 – Civil Procedure Act 2010 (Vic) ss 9, 25, 28, 29 – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.02.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Wood AM QC with Mr A G Manos	Seyfarth Shaw Australia
For the Defendant	Ms R Doyle SC with Ms L Doust	Maurice Blackburn Lawyers

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 1

Defendant’s submissions on costs.................................................................................................. 4

Plaintiff’s submissions on costs...................................................................................................... 6

Applicable principles........................................................................................................................ 8

Analysis.............................................................................................................................................. 12

Prejudice....................................................................................................................................... 15
Wasted Costs................................................................................................................................ 16

Conclusion......................................................................................................................................... 17

HER HONOUR:

For almost one and a half years, the plaintiff took no substantive steps to agitate this proceeding. The issue to be determined here is whether or not the plaintiff should pay the defendant’s wasted costs as a consequence of the plaintiff’s delay in prosecuting the proceeding between 8 January 2019 and 2 July 2020.[1]
[1]The defendant’s summons filed on 10 November 2020 [1].

Summary

The plaintiff ought pay the defendant’s wasted costs: specifically those relating to the defendant’s solicitor’s reviewing the file upon the plaintiff seeking to re-agitate the proceeding. The costs of the defendant’s counsel will be determined after hearing the parties’ submissions concerning the costs of the summons.

Background

On 19 December 2018, McDonald J published a judgment in this proceeding (‘contempt judgment’).[2] His Honour held that the conduct of three officials of the defendant constituted civil contempt and that the defendant ought pay a penalty of $125,000. Orders made on 19 December 2018 required the defendant pay the plaintiff’s costs on an indemnity basis.
[2]VICT v CFMMEU [2018] VSC 794.

The contempt judgment contains the background to this proceeding.

Approximately three weeks after the contempt judgment, namely on 8 January 2019, the plaintiff filed affidavits of service in respect of subpoenas it had caused to be issued in December 2018. After that, there were no documents filed for almost one and a half years.

Save for some correspondence with subpoenaed parties in January and February 2019,[3] the plaintiff did not take…

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 Vict v CFMMEU (Ruling No 3)

Details

AGLC: VICT v CFMMEU (Ruling No 3) [2021] VSC 16
Case: [2021] VSC 16
Decision Date: 28 January 2021

CaseChat Overview and Summary

The case between Vict and CFMMEU saw the court dealing with an issue of costs arising from the delay in prosecuting a proceeding. The delay, which amounted to almost one and a half years, was deemed inordinate and lacked proper justification. The matter was brought before the court to address the implications of this delay and the associated costs. The court was required to consider the effect of the delay on the proceedings and the extent to which the delay prejudiced the parties, as well as the appropriateness of awarding wasted costs.

The legal issues at the heart of the case were the appropriateness of awarding costs due to the significant delay and whether the delay caused specific or general prejudice to the parties involved. The court examined whether the delay warranted a finding of wasted costs, particularly the costs incurred by the solicitor in reviewing the file after such an extended period and the costs of counsel, which were to be considered in the context of the defendant's summons. The court referenced relevant case law, including Yara Australia Pty Ltd v Oswal and Gippsreal Ltd v Kenny, to guide its decision. Additionally, the court applied provisions from the Civil Procedure Act 2010 (Vic) and the Supreme Court Act 1986 (Vic), as well as rules from the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

In its reasoning, the court noted that while there was no specific prejudice caused by the delay, the general prejudice to the administration of justice was significant. The court found that the delay was unjustified and led to wasted costs, particularly those incurred by the solicitor in reviewing the file after such an extended period. The court also considered the costs of counsel in the context of the defendant's summons, ultimately deciding that these costs were to be borne by the defendant. The court's decision was influenced by the need to uphold the efficient administration of justice and deter future delays without proper explanation.

The court ordered that the defendant bear the costs of the proceeding, including the wasted solicitor's costs and the counsel's costs associated with the defendant's summons. This decision aimed to ensure that such delays do not go unpunished and to encourage timely prosecution of legal matters. The court's ruling underscores the importance of adherence to procedural timelines and the potential consequences of failing to do so.

Orders