Recent (2014) discovery amendments to the Civil Procedure Act 2010 (Vic)

The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (Vic) was given Royal Asset on 8 April 2014, and amends the Civil Procedure Act 2010 (Vic) (the "CPA"). The amendments mainly concern document management in the discovery process.

Click here for the link to the Explanatory Memorandum.

Click here for the link to the Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014.

The amending legislation does the following to the CPA:

• It gives a court power to order parties to prepare a statement of issues, which may be used for many purposes including discovery (ss50 and 50A).
• It gives a court power to give directions limiting the obligation of discovery to a class or classes of documents or to documents relating to one or more specified facts or issues in dispute (s55(2)(c)).
• It gives a court power to order a party to pay a specified amount to another party in relation to the costs of discovery, including by way of payment in advance or as costs in the proceeding (s55(4) and (5)).
• It gives the court power, on consent of the parties, to give over all documents in that party's possession or control, on the basis that privilege is not waived (s55A).
• It gives the court power to order a party to provide an affidavit of document management, including details of the volume or location of discoverable documents, the way the documents are arranged or stored, or the party's document management processes more generally (s55B).
• It gives the court power to order oral examination of a deponent of an affidavit of document management or another appropriate person who is able to provide information about the matters in the affidavit (s55C).

The amendments relating to discovery are novel, and reflect the increasing need for proper document management and the kind of document management processes. The purpose of the amendments, expressed in the Explanatory Memorandum, is:

[T]o ensure that the courts, parties and legal practitioners are using appropriate tools to reduce the costs and delays associated with the discovery process, for example by more clearly defining the issues in dispute, considering document management issues prior to undertaking discovery, and limiting the scope of discovery requests.

The amendment that allows a party to hand over all of its documents and maintain privilege is a method used in large-scale litigation where it is considered too onerous for a party to wade through millions of documents to extract privileged and irrelevant documents. Of course, the risk of agreeing to this kind of order is that once a document is seen, it cannot be unseen. On the other hand, this sort of order may avoid the kind of extreme satellite litigation that occurred in the recent High Court of Australia decision of Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 303 ALR 199. There, a party inadvertently discovered and produced 13 documents because of errors made in a large and complex discovery process, and the opposing party refused to return them. The discovery dispute started in the New South Wales Supreme Court, then went to the Court of Appeal, and then on to the High Court.

This is the sort of balancing exercise the Court and the parties will need to engage in when considering this kind of order, in light of the overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute (CPA, s7).

Over-representation, voluminous material and costs proportionality: Yara Australia Pty Ltd & Ors v Oswal [2013] VSCA 337

The matter of Yara Australia Pty Ltd & Ors v Oswal [2013] VSCA 337 was a unique step taken by the Court of Appeal, in which the Court of Appeal asked the parties to address the Court on the question of whether an unsuccessful leave to appeal application involved the breach by any party of its overarching obligations under the Civil Procedure Act 2010 (Vic) (the 'Act'). The concern of the Court of Appeal was whether, during a leave to appeal application, there was over-representation of a party by counsel and whether the material produced on the hearing of the application for leave to appeal was unnecessary or excessive.

That is, the Court of Appeal was concerned with whether the overarching obligation in s24 of the Act was breached, which provides as follows:

A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to—
(a) the complexity or importance of the issues in dispute; and
(b) the amount in dispute.

The Court sought submissions under s29(2)(b) of the Act, which allows a court to make certain orders on its own motion in the event that it finds a person has contravened the overarching obligations in the Act.

Background and summary of findings

By way of summary, the Court of Appeal noted the following relevant facts:

• The leave to appeal application was from a decision by Whelan J to set aside orders of Efthim AsJ that the respondents provide security for costs of the applicants in the proceedings. 
• The amount of security for costs sought for each party was between $20,000 and $80,000.
• There were five senior counsel, six junior counsel and five firms of solicitors representing the parties. One group of parties had two senior counsel and one junior acting for them; another had two juniors; and another had senior and junior counsel.
• The Court was provided with six application folders comprising submissions, affidavit material, transcript and authorities running to over 2,700 pages. The affidavits filed by the applicants contained many unnecessary documents, many of which were not referred to in the submissions.

The Court of Appeal considered that because of the complexity and expense of the broader litigation, including the ongoing legal costs for preparing the litigation and a damages claim that could run to hundreds of millions of dollars, it was appropriate that each party be represented by the counsel that were engaged (at [39]). 

However, the Court of Appeal considered that the applicants breached the overarching obligation in s24 because of the filing of voluminous material (at [53]). The Court of Appeal summed up the mischief that the Act is seeking to address, as follows:

52 The Act’s objective is the reform of the culture of unnecessary expenditure on civil litigation. Parliament has intended that this reform can only be achieved by holding parties to account for undesirable civil litigation practices that are unfortunately too common. The court was burdened with excessive material. The applicants and the respondents were burdened with the costs of that material. There has been a breach of the overarching obligation to ensure the costs are reasonable and proportionate by including in the application books voluminous material that was extraneous or repetitious and excessive.

The end result in Yara was that the Court of Appeal took the contravention into account under s29 and made the following orders, on its own motion, amongst others:

• each applicant was ordered to pay the respondent's costs; 
• each applicant's solicitor was ordered to indemnify the applicant 50% of the respondent's costs incurred as a consequence of the excessive content of the application books; and 
• each applicant's solicitor was disallowed recovery from the applicant of 50% of the costs relating to the preparation of the application books and incidental costs.

s24 requirement for costs to be reasonable and proportionate

The discussion about s24 focused on the obligation of legal practitioners to ensure that costs are reasonable and proportionate. The Court of Appeal said that this overrides the legal practitioner's duty to the client such that the client's instructions would not relieve the legal practitioner of this overarching obligation (at [14] to [15]):

14 Each party and their solicitor and counsel have an obligation to comply with the overarching obligation. Whether any of them have breached that overarching obligation is to be determined by an objective evaluation of their conduct having regard to the issues and the amount in dispute in the proceeding. The legal practitioners’ duty is non-delegable. The obligation will override their duty to their client where the discharge of that duty would be inconsistent with the overarching obligation.[19] The legal practitioner will not be relieved of this overarching responsibility because of the instructions of their client.[20] 

15 Legal practitioners, whether solicitor or counsel, involved in the preparation of pleadings, affidavits or other materials that are to be used in the proceeding or who provide advice as to such matters, have individual responsibilities to comply with the overarching obligation. Both solicitor and counsel also have an overarching responsibility with respect to the extent and level of their client’s representation. Each must ensure that, having regard to the issues, the extent and level of representation proposed is reasonable and proportionate. Advice or instructions given or received by legal practitioners, and instructions given by the client may inform but will not be determinative of the question whether, viewed objectively, there has been a breach of the obligation.

That is, if the client insists on senior counsel, or a number of counsel, in circumstances where it might not be reasonable because of the nature, complexity or quantum of the dispute, the legal practitioner is still on the hook despite those instructions.

s29 power to make orders on contravention of overarching obligations

The Court of Appeal also focused on s29, which gives the court power to sanction legal practitioners and parties for contravening their overarching obligations. The Court of Appeal noted that the power is broader and more flexible than that in R62.23 and the inherent jurisdiction of the Court, which are designed to compensate for negligence or incompetence ([18]).

The Court of Appeal said that s29 gives a degree of flexibility in sanctioning parties or legal practitioners because of a breach of the overarching obligations, and the sanctions are not just limited to incompetence or improper conduct, but failure to use reasonable endeavours to comply with the overarching obligations ([20]):

20 The Court’s powers under s 29 of the Act include the power to sanction legal practitioners and parties for a contravention of their obligations as the heading to Part 2.4 indicates.[30] In our view, these powers are intended to make all those involved in the conduct of litigation — parties and practitioners — accountable for the just, efficient, timely and cost effective resolution of disputes. Through them, Parliament has given the courts flexible means of distributing the cost burden upon and across those who fail to comply with their overarching obligations. A sanction which redistributes that burden may have the effect of compensating a party. It may take the form of a costs order against a practitioner, an order that requires the practitioner to share the burden of a costs order made against their client or an order which deprives the practitioner of costs to which they would otherwise be entitled. The Act is clearly designed to influence the culture of litigation through the imposition of sanctions on those who do not observe their obligations. Moreover, the power to sanction is not confined to cases of incompetence or improper conduct by a legal practitioner. Where there is a failure by the practitioner, whether solicitor or counsel, to use reasonable endeavours to comply with the overarching obligations, it will be no answer that the practitioner acted upon the explicit and informed instructions of the client. A sanction may be imposed where, contrary to s 13(3)(b), the legal practitioner acts on the instruction of his or her client in breach of the overarching obligations.

As such, the Court of Appeal regarded ss28 and 29 as giving the Court broad disciplinary powers which may be reflected in the costs orders made ([21]).

The Court of Appeal also noted that s29 has resulted in courts at first instance taking a more pro-active and innovative approach in achieving its objects, particularly because judicial officers must actively hold the parties to account ([24] and [26]):

26 The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.

The Court of Appeal also noted the under-utilisation of these provisions by the courts on their own motion, and considered whether there was judicial disinclination to do this because of a fear that an inquiry about a potential breach might be time-consuming and require the introduction of additional material. The Court of Appeal noted that such fears cannot relieve judges of their responsibilities, and in any event a judge at first instance would not be expected to undertake a substantial inquiry particularly when most of what would be required is a brief submission on costs ([27]):

27 Yet as we have observed, sanctions imposed for a breach of any overarching provisions have been a rarity at first instance. When no party invites the court to determine whether there has been a breach of the Act, there may be a judicial disinclination to embark upon such an own-motion inquiry for fear that inquiry as to a potential breach may be time consuming and may require the introduction of material that was not before the court as part of the proceeding. Such fears cannot relieve judges of their responsibilities. But we would not wish it to be thought that a judicial officer at first instance must undertake a substantial inquiry when considering whether there has been a contravention of the Act. As the sanction for a breach will usually lie in an appropriate costs order, a judge may at the conclusion of the reasons for judgment immediately invite oral submissions as to why there should not be a finding that the Act was contravened. The judge may in a relatively brief way deal with that issue in providing succinct reasons for a finding that there has been a breach of the Act and how that finding affects the orders for costs that are to be pronounced. 

Summary

Yara is an important case because it has considered the core case management provisions in the Act. It has signalled that the purpose of s28 and 29 is both punitive and compensatory, and that parties and practitioners who do not act reasonably and who do not comply with their overarching obligations ought to beware, as a court may be obliged, because of circumstances that arise during a case, to undertake its own inquiry into whether or not there has been a breach of the Act.

Also, the Court of Appeal noted that legal practitioners cannot rely on their client's instructions as an excuse for a breach of their overarching obligations, and must ensure they also comply. This applies to both the seniority of counsel and number of lawyers engaged on the matter, and the volume and relevance of documentation before the Court. The legal practitioners remain on the hook for these matters despite the client's instructions.

Re-opening the plaintiff's case: Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 28) [2013] VSC 523

The matter of Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 28) [2013] VSC 523 was an application, in the bushfires class action, to re-open the plaintiff's case during the trial. The plaintiff sought leave to re-open her case to tender a coach screw found by a metal detector. The defendants opposed the application on the basis that it was too late and the evidence was of little or no probative value. His Honour J Forrest J gave the plaintiff leave to re-open her case and discussed the principles concerning re-opening a case, an extract of which follows.

19. The relevant question raised by the application is whether, on the whole, it is in the interests of justice that leave be granted for Mrs Matthews to re-open her case. 

20. The position in relation to re-opening a case after the close of final submissions or judgment has been delivered is clear. In Spotlight Pty Ltd v NCON Australia Ltd[12] the Court of Appeal agreed with the opinion of Kenny J in Inspector-General in Bankruptcy v Bradshaw[13] that there are four recognised classes of case in which a court may grant leave to re-open a party’s case:[14]

The four classes (with which we respectfully agree) are: (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of the law. 

These classes are not closed; but the present case shares with Bradshaw the distinction that it falls into none of them, and no applicable new category is suggested. The overriding principle is that the court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. We are satisfied that, in the present, it does not.

21. This year Sifris J dealt with an application by a plaintiff to re-open its case in Nicholson v Hilldove Pty Ltd & Ors.[15] In that case the application was made after the trial of the proceeding and reasons for judgment had been handed down. His Honour reviewed the authorities and said:[16]

The authorities establish that the existence or discovery of fresh evidence alone is not sufficient to re-open the case. If this were not so decisions would be “of a provisional character only”. Rather, public policy requires a more “stringent rule”. Accordingly a party seeking to re-open a case on the grounds of fresh evidence is required to show “that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict”.

22. Each of these cases involved re-opening a case after final submissions and in two of the cases (Bradshaw and Nicholson) after the judgment. It is clear that a very powerful reason is required and, of course, one that satisfies the criteria set out by the Court of Appeal in Spotlight. However re-opening a case whilst the trial is still underway is a different kettle of fish altogether. 

23. The High Court in Smith v New South Wales[17] referred to the considerations relevant to determining whether to permit the re-opening of a case during the course of a trial:[18]

If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for the judgement [sic] have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.

24. Thus the primary consideration is whether the interests of justice require that the application be allowed. In this state the Court’s broad powers of case management under the Civil Procedure Act 2010 (Vic)[19] need to be noted: to achieve the objective of ‘[facilitating] the just, efficient, timely and cost-effective resolution of the real issues in dispute’ the Court may make any order or give any direction with regard to the objects listed in s 9(1)[20] including (a) the just determination of the civil proceeding and (c) the efficient conduct of the business of the court. 

25. Section 49(1) of the CPA also gives the Court the power to ‘give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding’ before a hearing commences or during a hearing.'

In granting leave, His Honour considered that:

• The delay in searching for the screw was explicable.
• The failure to tender the screw earlier was the result of a misunderstanding or misjudgment of counsel.
• The evidence was relevant, and in so finding His Honour said, 'It merely requires the court to ask: could the evidence if accepted, affect the probability, even indirectly, of the existence of a fact in issue in the proceedings? There need only be a minimal logical connection between the evidence and a fact in issue. It is important not to confuse relevance with sufficiency or weight (at [45]).'
• Any prejudice in re-opening the case would be minimal, and it was particularly important that the plaintiff submitted that it was not intended to conduct an expert analysis of the screw and therefore avoid 'instigating another battle of expert evidence'.

Civil Procedure Amendment Act 2012 receives royal assent and commences 1 May 2013

I attended the Commercial Bar Association annual cocktail party in the Supreme Court of Victoria library on 30 October 2012, and during his speech the Attorney-General Robert Clark noted that the Civil Procedure Amendment Act 2012 received Royal Assent that morning.

I previously wrote about the structure of the Civil Procedure Amendment Bill 2012 in my article Civil Procedure Amendment Bill 2012 - costs disclosure and expert evidence. The structure of the Act has not appeared to have changed since it was introduced as a Bill.

By way of summary, the Act:

• empowers the Court to make orders about costs disclosure;
• empowers the Court to make orders about the costs of proceedings;
• empowers the Court to make orders managing expert witnesses; and
• removes duplicative certification requirements for frequent litigants. 

The Civil Procedure Amendment Act 2012 commences as an amendment to the Civil Procedure Act 2010 on 1 May 2013.

The full authorised text from the Victorian Parliament is here.

On another note, at the cocktail party the Commercial Bar Association launched its new website: http://www.commbar.com.au

Civil Procedure Amendment Bill 2012 - costs disclosure and expert evidence

The Civil Procedure Amendment Bill 2012 was recently introduced into the Victorian Parliament by Attorney-General Robert Clark and is currently being considered by the lower house. The Civil Procedure Amendment Bill 2012 is an amendment to the Civil Procedure Act 2010.

The explanatory memorandum of the Civil Procedure Amendment Bill 2012 notes that it is being introduced to give additional powers and discretions for the Courts in relation to costs disclosure and expert evidence:

The Civil Procedure Amendment Bill 2012 amends the Civil Procedure Act 2010 to introduce specific powers and discretions for the courts in relation to costs and expert evidence, to amend and create greater flexibility in the overarching obligations and proper basis certification requirements and to make other technical amendments.

The Bill aims to reduce costs and delays for persons involved in civil litigation in Victoria, and improve the effectiveness of the civil justice system. The Bill builds on the foundation established by the Civil Procedure Act 2010 in seeking to give judges and magistrates a clear legislative mandate to proactively manage cases in a manner that will promote the just, efficient, timely and cost-effective resolution of the real issues in dispute in a civil proceeding.

Part 2 of the Civil Procedure Amendment Bill 2012 gives the Court power to require costs disclosure to a lawyer's own client, and expands the type of costs orders which are able to be made:

Disclosure of litigation costs by a lawyer to his or her client is critical for informed decision-making. The Bill gives the courts a discretionary power to order that a lawyer make costs disclosure to the lawyer's own client. The order may be made at any stage of the proceeding. This will allow the courts, in appropriate cases, to increase the parties' access to information in relation to actual and estimated costs and disbursements incurred prior to trial, thereby encouraging more informed decision-making and the settlement of appropriate cases. 

The Bill also clarifies and strengthens the courts' discretionary power to make other costs orders aside from the usual order that the losing party pay the winning party's costs. The Bill provides that the court may make any costs order that it considers appropriate to further the overarching purpose. Specific powers include ordering costs as a lump sum figure instead of taxed costs, ordering a party to pay a proportion of costs or fixing or capping recoverable costs in advance. Such orders avoid or narrow the scope of a taxation of costs. The objective is to increase the use of other costs orders in appropriate cases, thereby reducing the complexity, time and cost associated with taxation. Orders may be made in relation to any aspect of a proceeding, including, but not limited to, any interlocutory proceeding.

Part 3 of the Civil Procedure Amendment Bill 2012 gives the Court greater power to manage expert evidence, including requiring parties to seek directions if the party intends to adduce expert evidence at trial, ordering conferences and joint reports and limiting expert evidence in Court:

Expert evidence plays a critical role in civil litigation and is often essential to the just determination of an issue in dispute between the parties. However, expert evidence can also be a significant source of expense, complexity and delay in civil litigation. For example, the disproportionate use of expert witnesses has the potential to increase costs and delays for parties and reduce the effectiveness of the civil justice system as a whole. The inherent complexity and volume of expert evidence can also limit its usefulness to decision-makers.

The main objective of the expert evidence provisions is to reduce the costs and delays associated with expert evidence by providing clear legislative guidance and encouragement for the courts to actively manage and control expert evidence. The provisions also aim to improve the quality and integrity of expert evidence and enhance its usefulness to judges and magistrates.

Some of the expert evidence provisions consolidate existing powers of the courts, for example in the rules of court and practice directions. Although the existing powers of the court may be sufficient for the court to give directions and impose reasonable limits on any party in respect of expert evidence, clear statutory provisions will have greater impact in encouraging the courts to actively manage and control expert evidence. This will also resolve any argument about the limits of existing rule-making powers and will overcome any constraints on the exercise of powers that exist at common law.

Finally, the Civil Procedure Amendment Bill 2012 amends the certification requirements, including extending certification to any 'substantive document' that a party relies on (with some qualification).

The expert provisions appear to be detailed and, if the Civil Procedure Amendment Bill 2012 is passed and given Royal Assent, practitioners will need to quickly get up to speed with the detail in the bill. The proposed commencement date is 1 May 2012 or on proclamation.

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]).

Solicitor not permitted to cease to act - Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81

I am attending a Commercial Court seminar tomorrow (6 June 2012) at Monash University Law Chambers on the matter of Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81. I thought I'd give a brief summary by way of background to bring both myself and my audience up to speed.

Investec was an application before Pagone J for leave to file and serve a notice of solicitor ceasing to act. The trial was listed for 13 March 2012 and it was set down on 9 December 2011. The defendants' solicitor applied for leave to file and serve their notice on 2 March 2012, 11 days before the trial.

The evidence of the defendant's solicitor in support of the application was to the effect that a request for funds was made on 2 March 2012 and the defendants said that they could not provide the funding.

Pagone J held that there were 'special circumstances which render it expedient to retain the solicitor on record', particularly the lateness of the request for funding and the inconvenience to the parties and the Court (at [8]):

8 This is a case where in my view there are “special circumstances which render it expedient to retain the solicitor on the record.” The application was made almost three months after the date was fixed for trial and only eleven days before the trial was due to commence. Madgwicks left their requirement that its clients put them in funds for the trial until 2 March 2012. No explanation was given for the delay (or timing) in imposing or insisting upon funds or for the delay (or timing) in making the application for leave. It is incumbent on solicitors making such applications for leave to satisfy the Court that it is proper and appropriate that leave should be granted. Applications of this kind are likely to be unopposed and that circumstance, coupled with the practitioner’s duty to the Court and to uphold the law, makes it incumbent upon them to be full and frank with the Court asked to grant leave. The removal, or absence, of legal practitioners close to trial is sometimes used as a reason for an adjournment of the hearing with inconvenience to the Court, the other parties and to other litigants. Practitioners ought to guard against the possibility of the Court finding itself with unrepresented litigants close to the hearing date. No evidence was given by Madgwicks of having taken any steps to avoid the inexpedient consequences to the Court, to the plaintiff and to the plaintiff’s solicitors which would arise if the leave Madgwicks seeks were to be granted. Nor, for that matter, have Madgwicks given evidence of any steps to prevent the situation of the defendants finding themselves close to the hearing date without legal representation or having to conduct the trial unrepresented after many months of all concerned knowing of the trial date. The inconvenience to the Court and the additional inconvenience and costs to the plaintiff and its solicitors, that would be occasioned by granting leave at so late a stage, could not be compensated by costs orders and outweigh any burden to Madgwicks of not granting them leave. The requirement in r 20.03(3) of seeking leave is imposed upon legal practitioners for the proper administration of justice. It enables the Court’s work to be performed efficiently and with the confidence of the assistance of practitioners it provides a protection to former clients and serves to protect the position of adversaries.

Pagone J held that the effect of this meant that the solicitors would not necessarily have to conduct the trial for the defendants, but would be required to offer such assistance as the court may require (at [9]):

9 The role Madgwicks may hereafter be required to perform upon my refusal to grant leave is another matter. Their continued role should, as far as possible, be limited to the purpose of the rule requiring leave as explained in Plenty v Gladwin as concerned with the record of the Court and with service of documents. They may be required to continue to receive documents from the plaintiff’s solicitors. It may require Madgwicks to continue to convey to the defendants any documents served for them at Madgwicks. Their status as officers of the Court may conceivably also require them to offer such assistance as the Court may require during the conduct of the trial. Madgwicks may not be required to conduct the trial on behalf of their former clients without funding but may need to give such other assistance as may be required by the Court to lessen or eliminate the adverse impact upon the Court’s record or upon the orderly service of documents upon the defendants as the Court may direct. It is conceivable that greater duties may also arise but they should not be considered in the abstract and without hearing submissions from Madgwicks and others affected.

The decision in Investec has serious implications for litigation legal practitioners as it would appear to require a legal practice to continue working for a client in circumstances where there is no funding available or likely to be available.  With that in mind, I am looking forward to the commentary on Investec from the Bench, Senior Counsel and the Victorian Legal Services Commissioner at the seminar tomorrow night.

Law Council publication - Federal Court of Australia Case Management Handbook

The Law Council of Australia has just released a handbook for case and hearing management in the Federal Court of Australia. The handbook is 79 pages and draws on the experience of the Law Council of Australia, senior practitioners and the judiciary to provide a user friendly guide to running cases in the Federal Jurisdiction.

A link to the media release and the handbook is here.

The foreword is authored by the Honourable Chief Justice Keane, and it reads as follows:

This Handbook is a very important development in the ongoing dialogue between the Federal Court of Australia and the legal profession who practise before it about how best to manage the cases which are commenced in the Court.

The Federal Litigation Section of the Law Council of Australia and the members of that Section who gave so generously of their time to author the individual chapters which make up the Handbook are to be congratulated.

It is a first class product and contains a wealth of information, guidance, ideas and suggestion about the tools and techniques available for use in the Court. It garners the experience of judges and practitioners alike and provides a valuable insight to case management in litigation in the Federal Court.

I commend the Handbook to all practitioners and encourage them to make full use of this outstanding resource.

I suggest my readers download a copy and review it, as the handbook really is a great practical resource for any sort of litigation, particularly in the Federal Court of Australia.

Late service of expert reports - Thomas v Powercor Australia Limited (Ruling No 3) [2011] VSC 391

The matter of Thomas v Powercor Australia Limited (Ruling No 3) [2011] VSC 391 is an application by a plaintiff for the Supreme Court of Victoria to accept an expert report served by the plaintiff on the third day of a trial. The trial concerns the Black Saturday Horsham bushfires and the application was before J Forrest J. The trial commenced on or about 3 September 2011 with the issue of liability concerning a conductor falling from a pole on a power line. 

The plaintiff was required to serve its expert report in April 2011 and the experts were ordered to meet and prepare a joint expert report by late June 2011. On the third day of the trial the plaintiff delivered an expert report. The expert opinion in the report concerned the manner in which a coach screw was fixed to the pole, which was considered to be material to the issues.

The report was rejected by the Court. I have included a case discussion and extracts below.

NSW postpones introduction of 'reasonable steps' pre-litigation requirements

The New South Wales government has announced that is is postponing the introduction of its 'reasonable steps' pre-litigation requirements which it introduced in Part 2A of the Civil Procedure Act 2005 (NSW).  The postponement was announced by the NSW Attorney General, Greg Smith SC on 23 August 2011. Part 2A was originally set to apply to matters filed on or after 1 October 2011, however the government has announced a postponement of 18 months.

I have included a discussion on this below.

VCAT and claims for lost time

I was recently involved in a matter where a self represented applicant to a proceeding in the Victorian Civil and Administrative Tribunal (VCAT) had a substantial claim for damages and a substantial claim for lost time in preparing the matter for hearing. This is a fairly typical claim for a self represented litigant in VCAT.

I have included below a discussion of a claim for lost time in VCAT.

Turner v Hidayat [2011] VSC 202 - Implied power to reinstate proceeding in VCAT

The matter of Turner & Anor v Hidayat [2011] VSC 202 (Turner) was an application for leave to appeal in the Supreme Court of Victoria before Kyrou J from a decision made in the Victorian Civil and Administrative Tribunal (VCAT). In Turner, the plaintiffs were borrowers under a loan secured by a property. The plaintiffs defaulted under the loan and applied to VCAT for relief under the Consumer Credit (Victoria) Code.

The plaintiffs failed to attend a compulsory conference listed by VCAT because their solicitor wrote the wrong date in his diary. For reasons which Kyrou J could only speculate on, VCAT listed a directions hearing after the compulsory conference (on that day) and ordered that the proceeding against the defendant be struck out with costs. The plaintiffs applied to set aside the orders made and the parties entered consent orders where the proceeding would be reinstated only if the plaintiffs vacated the property by 25 August 2010. Because of the financial difficulties being experienced by the plaintiffs, they vacated by 30 August 2010. The Tribunal confirmed the proceeding was struck out and did not reinstate the proceeding on further application.

In granting leave to appeal, Kyrou J discussed the implied power to reinstate proceedings. I have discussed this in detail below.

Apostolou v Commissioner of State Revenue [2008] VSC 332 - the 'McKenzie friend'

The matter of Apostolou v Commissioner of State Revenue [2008] VSC 332 (Apolstolou) was a hearing before Mandie J in the Supreme Court of Victoria. In Apolostolou, Mandie J considered an application for a a party to be granted leave to be represented by a non-lawyer.

Apostolou was an appeal from a decision of VCAT to impose duty on two land transfers. The appellant said that these transfers were not dutiable as they were the result of a change of trustee in respect of the land (at [4]). The appellant's husband appeared throughout the appeal as a 'McKenzie friend', and also deposed to matters in the affidavits in support. The appellant's case was that the husband was the real owner of the land behind the trusts as he was the settlor, and although his wife's name was in the title of the proceedings, it was really his case (at [15] and [17]). I have discussed this in the summary below.

Morris v Riverwild Management Pty Ltd & Ors [2009] VSC 654 - obtaining documents from a party

The matter of Morris v Riverwild Management Pty Ltd & Ors [2009] VSC 654 (Morris) is a 2009 decision in the Supreme Court of Victoria before Gardiner AsJ which concerns the proper form of obtaining documents from another party. I have included a case summary and discussion below.

Namberry Craft Pty Ltd & Anor v Watson & Anor [2011] VSC 136

Namberry Craft Pty Ltd & Anor v Watson & Anor [2011] VSC 136 (Namberry Craft) involved a hearing before Vickery J in the Supreme Court of Victoria. The hearing was brought on by originating motion for certiorari and/or prohibition in respect of a Magistrates' Court of Victoria decision to grant leave for a plaintiff to amend a statement of claim during closing submissions. The matter in the Magistrates' Court of Victoria involved a claim by Mr Watson (as plaintiff) against a syndicate (as defendants) for 10% of the winnings of a Tattslotto ticket which the syndicate denied it owed to the plaintiff.

Vickery J heard the matter in the Supreme Court of Victoria and provided an excellent discussion and summary of case management issues and Aon Risk Services Australia v Australian National University [2009] HCA 27 (Aon).

Civil Dispute Resolution Bill - federal pre-litigation procedures

The Civil Dispute Resolution Bill (the CDR Bill) was recently passed by both houses of the Commonwealth Parliament. As far as I am aware it has not received Royal Assent, but I will let you know when it does. Generally speaking, the CDR Bill requires the parties to undertake 'genuine steps' to resolve a proceeding before it is commenced, and requires the parties to make a statement about those steps when issuing proceedings. I have included a discussion and summary of the CDR Bill in this post.

Repeal of the pre-litigation requirements from the Civil Procedure Act 2010 (Vic)

The Civil Procedure and Legal Profession Amendment Act 2011 (Vic) was recently passed by the Victorian Parliament and is effective from 30 March 2011. The purpose of this amendment as set out in s1 of that act includes: 'to amend the Civil Procedure Act 2010 to repeal Chapter 3 and other provisions relating to pre-litigation requirements.' This article discusses the amendment in detail.