Zafiriou v St-Gobain Administration Pty Ltd - [2013] VSCA 383

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0118

ARTHUR ZAFIRIOU
	v
SAINT-GOBAIN ADMINISTRATION PTY LTD

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JUDGES:	OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 November 2013
DATE OF JUDGMENT:	29 November 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 383
JUDGMENT APPEALED FROM::	[2013] VSC 377

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PRACTICE AND PROCEDURE - Application to rely on fresh evidence - Documents not discovered before judgment - Application to add ground of appeal dealing with late discovered material - Costs - Application for leave to appeal in respect of costs order - Security for costs.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G H Golvan QC with Mr R A Millar	Macpherson + Kelly
For the Respondent	Mr C B O’Grady with Mr A R McNab	Peter Vitale

OSBORN JA:

I will ask Beach JA to deliver the first judgment.

BEACH JA:

On 26 October 2010, Mr Arthur Zafiriou was dismissed from his employment with Saint-Gobain Administration Pty Ltd. Upon his termination, Mr Zafiriou received a payment in lieu of four weeks’ notice. Mr Zafiriou then commenced proceedings against Saint-Gobain alleging that his termination and payment in lieu of notice was in breach of the contract of employment between the parties.

On 24 July 2013, following a 12 day trial, Emerton J dismissed Mr Zafiriou’s proceeding. On 26 August 2013, her Honour ordered Mr Zafiriou to pay Saint-Gobain’s costs of the proceeding on a party party basis until 9 December 2011, and thereafter on an indemnity basis.

On 7 August 2013, Mr Zafiriou filed a notice of appeal against the judgment of Emerton J delivered on 24 July 2013. The notice of appeal contains 14 grounds and seeks orders that the judgment below be set aside and judgment be entered for Mr Zafiriou ‘for the relief sought at first instance’.

Before the Court this morning there are three applications: first, an application by Mr Zafiriou for leave to rely on fresh evidence, namely a PowerPoint slide presentation identified as Exhibit RJ2 to the affidavit of Robert Jackson sworn 11 October 2013, and then to add a ground of appeal dealing with this material; secondly, an application by Mr Zafiriou for leave to appeal against the costs order made on 26 August 2013; and thirdly, an application by Saint-Gobain for security for costs of Mr Zafiriou’s appeal.

The fresh evidence and new ground of appeal application

A significant issue between the parties at trial was whether Mr Zafiriou was terminated because his position had been made redundant. Mr Zafiriou alleged that his position had been so terminated and that he was therefore entitled, not merely to four weeks’ pay in lieu of notice, but rather to a termination payment of an amount in excess of $744,000. On the other hand, Saint-Gobain’s case was that Mr Zafiriou was terminated because of unsatisfactory work performance and he was therefore only entitled to the four weeks’ pay in lieu of notice.

In dismissing Mr Zafiriou’s claims, her Honour held that Mr…

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 Zafiriou v St-Gobain Administration Pty Ltd

Details

AGLC: Zafiriou v St-Gobain Administration Pty Ltd [2013] VSCA 383
Case: [2013] VSCA 383
Decision Date: 29 November 2013

CaseChat Overview and Summary

Zafiriou v St-Gobain Administration Pty Ltd involved the applicant, Mr Zafiriou, seeking to rely on fresh evidence that was not discovered prior to the judgment in the primary proceedings. The dispute pertained to whether Mr Zafiriou could introduce new documents into the appeal process, which had significant implications for the outcome of the case. The Federal Court of Australia was tasked with determining the admissibility of this fresh evidence and the associated legal consequences.

The court had to decide whether the newly discovered documents could be considered in the appeal and, if so, whether the respondent was prejudiced by the late disclosure. Additionally, the court needed to determine the appropriate costs implications of such an application and whether Mr Zafiriou should be required to provide security for the respondent's costs if the appeal was unsuccessful. The court also considered whether Mr Zafiriou should be granted leave to appeal the costs order made against him.

The Federal Court held that the fresh evidence could not be admitted because it was not discovered before the judgment and its admission would unfairly prejudice the respondent. The court emphasised that the proper procedure for dealing with such evidence is to make an application to the court, which must then decide whether the evidence should be considered. The court further ruled that Mr Zafiriou should provide security for the respondent's costs if the appeal were to be dismissed. In relation to the application for leave to appeal the costs order, the court determined that such an application would not succeed as the costs order was appropriate given the circumstances.

Orders