Thursday, March 31, 2011

Expert evidence 102 - when do you need it and why?

My earlier post 'Expert evidence 101 - what is expert evidence' concerned what admissible expert opinion evidence is. But when is it required?

If I have a matter where an owner sues a builder because part of the owner's house which the builder constructed has collapsed, does the owner need an expert to help prove it was the builder's fault? If I have a matter in which a business is claiming lost profit because of negligent investment advice, can the Court work out for itself if the advice was negligent? Can a Court reach conclusions on the loss caused in relation to the above actions without the evidence of an expert?

Wednesday, March 30, 2011

Great law research tools

I am really enjoying the ongoing development of technology and its effect on my practice. I have recently discovered several tools which I have found useful for my practice, particularly in reducing research time and allowing me to do work on the run. These are as follows:

The daily list iPhone app - this is an app for the iPhone which provides updated daily lists and contact details for all Victorian State Courts. The app allows the user to conveniently search the lists and sort the data.

ACLC iPhone app - this is an app for the iPhone which allows the user to search for the corresponding sections of the old Trade Practices Act 1974 (Cth) and the new Competition and Consumer Act 2010 (Cth).

Legify - this is a website which allows the user to search the title and find the full updated or historical text of any authoritative version of state or federal legislation (including subordinate). It is helpful if the user knows all or part of the title of the legislation/regulation the user is looking for.

Do you have any similar apps or sites which help your practice? Let me know what they are as they might equally help mine!

Saturday, March 26, 2011

New home:

I decided to obtain a domain name for the civil lawyer, appropriately entitled I have been informed by the blog gods that is diverting traffic to the new site so no need to change your bookmark (at least for now).

I was inspired  to do this by a copyright matter I am involved in which considers the use of domain names with useful terms in them to increase search popularity. With this in mind, seemed  more descriptive than

Otherwise nothing has changed here.

Wednesday, March 23, 2011

Beer wars - the supplier strikes back!

I read with interest an article in the Age today about the 'Beer wars'. Fosters found out (through 'intelligence received') that Coles was preparing a brochure which advertised VB for $28 per slab, which usually wholesales for $33 per slab. This flagged for Fosters a looming price war between Coles and Woolies on Foster's beer product.

Fosters was having none of it. It didn't want its brands devalued by this ongoing war between Coles and Woolies. Fosters shut down its supply of beer and refused to deliver any of its beer to Coles and Woolies.

Tuesday, March 22, 2011

Expressing opinions - law blogging and taking a stand

The other day I was reading an article posted by Kevin O'Keefe about expressing opinions in law blogs entitled 'Take a stand on your law blog : Debate can be good'. The article was in response to another blog by Scott Greenfield entitled 'Dead Lawyers Have No Enemies' on the same topic. The timing of these two articles was quite good, as only an hour before reading those blogs I was turning over in my mind the various pros and cons of expressing opinions and views in law blogs (or 'blawgs', as the learned authors note).

Friday, March 18, 2011

Expert evidence 101 - what is expert evidence?

Admissible expert opinion evidence is evidence of a person's opinion if that person has specialised knowledge based on the person's training, study or experience, and that opinion is wholly or substantially based on that knowledge (s79 Evidence Act 2008 (Vic)).

This can be broken down into the following three mandatory pre-requisites:
  1. the person has 'specialised knowledge';
  2. that 'specialised knowledge' is based on 'the person's training, study or experience'; and
  3. the opinion is 'wholly or substantially based on that knowledge'.

Wednesday, March 16, 2011

The time of service on companies - s109X and 'deemed' service

When a company owes a debt which is over $2,000, the creditor has the option of serving on the company a statutory demand for payment of that debt (demand) or suing the company for the debt. If the company fails apply to the Court to set aside the demand (because it disputes the debt) or pay the demand within 21 days of service of the demand, then the creditor may apply to wind up that company under the Corporations Act 2001 (Cth).

Similarly, when a company is sued in Court by a creditor for a debt, the company usually has a fixed time period from service of the process in which to file an appearance or a defence in response to the originating process (process) served upon it (e.g. 10 days to file an appearance, 21 days to file a defence). If the company does not take action within the specified time, then the creditor can obtain judgment by applying to the Court.

So what is the position when a creditor believes that a demand or process was delivered a day or more earlier than the company says it was actually received? What if a director comes back from leave three weeks after the demand or process was actually delivered to the registered office? What happens when a company has moved its registered office and receives the demand or process much later than when it was posted because of a diversion to another address or a PO Box? In this situation, the company may think it has a certain time from receipt of the demand or process to respond, but the actual time to respond may be much less than that.

Thursday, March 10, 2011

Sheen v Warner Bros. - another example of a termination dispute

Following on from my previous post concerning the Fevola settlement and termination payment dispute, I saw in an article published on 8 March 2011 in the Herald Sun and SMH that Warner Bros. is terminating Charlie Sheen's contract. Unsurprisingly, Mr Sheen is alleging wrongful termination.

This is another good example of what occurs when one party is seeking to end a contract as a result of the other party's behaviour, and the other party is resisting that act. Like my previous example, Warner Bros. and Mr Sheen are concerned with the payment consequences of the termination: that is, if Warner Bros. has the right to terminate the contract, then it does not have to make any further payments to Mr Sheen under the contract; if Warner Bros. does not have this right, Mr Sheen has the right to elect to sue Warner Bros for the balance of payments due under the contract. Substantial amounts are involved here, as Mr Sheen is allegedly paid $2million per episode under this contract. As such, there is a lot of pressure on Warner Bros. to get its claim right.

Tuesday, March 8, 2011

ANZ class action progress - ANZ seeks time to calculate fees

The ANZ 'bank fees class action' is an action run by Maurice Blackburn lawyers in the Federal Court of Australia on behalf of 27,000 ANZ bank customers. Maurice Blackburn has prepared a good summary of the litigation here. The litigation is funder by IMF (Australia) Ltd, a litigation funder.

In the class action the group of  customers are suing the ANZ bank for 'exception fees' (e.g. credit card overdrawing fees) which they claim are unlawful because the fee charged for the particular default is not a genuine pre-estimate of ANZ's actual loss on that default. ANZ is being sued for $50million in damages, which presumably is the plaintiffs' estimate of the unlawful fees previously charged. Obviously ANZ has to establish that each fee correlates with the value of the bank's loss on the particular default. So, for instance, if a person is charged $30 for overdrawing a credit card limit of $8,000, the bank needs to demonstrate that it incurred a $30 loss or thereabouts by reason of the customer's action.

Monday, March 7, 2011

Part IVAA Wrongs Act 1958 (Vic) and joining corporate non-parties in liquidation

Part IVAA of the Wrongs Act 1958 (Vic) (Part IVAA) is a powerful tool for defendants being sued in negligence (or for a failure to take reasonable care in general) or for misleading or deceptive conduct when there may be other parties responsible for the loss being sued for. In such matters, the defendant can reduce its liability based on the comparative responsibility of other parties, provided the other parties are parties to the proceedings (unless they are dead or 'wound up'). When a defendant wants to join, as another defendant, a corporate non-party in liquidation, the authorities are unclear as to whether or not leave of the Supreme of Federal Court is required. This is an important consideration for matters issued in inferior jurisdictions, which do not have the power to give leave.

Thursday, March 3, 2011

Summary judgment under the Civil Procedure Act 2010 (Vic)

In a previous post I summarised the key provisions of the Civil Procedure Act 2010 (Vic) (the CPA). Part 4.4 changes the test for summary judgment, such that judgment may be obtained by a party if the other party's claim or defence has 'no real prospects of success'.

Wheelahan v City of Casey & Ors (No 3) [2011] VSC 15 (Wheelahan) is one of the first matters which considers this new test for summary judgment under the CPA.