Learned observations on Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81

On 6 June 2012 I attended the Commercial Court seminar on Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81 (Investec No. 2).

The decision in Investec No. 2 appears to be quite drastic. That is, the Supreme Court of Victoria dismissed an application for the solicitor to file a notice of solicitor ceasing to act, and required the solicitor to continue to act and be on the Court record in circumstances where the client did not have the available funding or instructions. However Michael McGarvie, the Legal Services Commissioner, noted that Investec had to be put into context which is otherwise not apparent from the judgment.

The context was a preceding decision of Pagone J in Investec Bank  (Australia) Limited v Mann & Anor [2012] VSC 58 (Investec No. 1) in which the defendants' and their solicitor's conduct was brought into question. In Investec No. 1 the defendants made application for leave to file and serve an expert report out of time and by 2 March 2012 (11 days before trial). There was evidence that the defendant's solicitor sent correspondence to the plaintiff suggesting that an expert had already been engaged and that the expert required further time for the preparation of a report. The plaintiff gave evidence that the expert, once contacted by the plaintiff, said that he hadn't been retained at all. Pagone J agreed with the plaintiff, dismissed the application and invited submissions on whether it was appropriate to order costs against the defendant's lawyer (see [13] and [14]). Obviously this sort of background would colour the application for leave in Investec No 2.

Justice Davies, who introduced and summarised Investec No. 2, noted that the procedure used in Investec No. 2 could be a tactic for a party to obtain an adjournment of the trial. The difficulty that I see with a Judge dealing with this sort of application is how to infer that this tactic is being used, when the evidence will never really go to this. Perhaps the notable lack of evidence on certain issues could be used to infer such an intention on the party who was represented by the solicitor seeking leave (e.g., such as the notable lack of evidence on certain matters in Investec No. 2 at [9]).