Stay for non-payment of interlocutory costs order - Rozenblit v Vainer [2017] VSCA 52

Although many interlocutory decisions result in orders for payment of costs that are to be taxed and paid at the conclusion of the proceedings (see R 63.20.1), every now and then there is an interlocutory decision made where costs are fixed and are payable forthwith (see R 63.03(2.1)). Whenever such a cost order is made, there is a chance that the party responsible for paying those costs will not pay, and there is a question about how to deal with compliance. 

The primary option appears to be an application, under R 63.03(3), to stay or dismiss the proceeding (if the defaulting party is the plaintiff) or to strike out the defence (if the defaulting party is the defendant). Like R 63.20.1  this is a recent amendment to the Supreme Court Rules. The rule provides as follows:

[63.03](3) Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so—
(a) if that party is the plaintiff, the proceeding shall be stayed or dismissed;
(b) if that party is a defendant, the defendant's defence shall be struck out.

However, the power is discretionary and it appears that the courts take a conservative approach to granting orders under this rule.

The matter of Rozenblit v Vainer [2017] VSCA 52 contains a neat summary, by Whelan and McLeish JJA, of the principles when a court will stay a proceeding for failure to pay a costs order made on an interlocutory decision, at [67]:

(a) a stay for failure to satisfy an order for costs in an interlocutory matter may only be ordered if it is the only fair and practical way of facilitating the just, efficient, timely and cost-effective resolution of the proceeding;
(b) justice between the parties requires regard to be had to the interests of the party in whose favour the costs were ordered to be paid;
(c) the parties’ conduct of the proceeding to date, and in particular the reasons for which costs were ordered to be taxed immediately, are relevant to the exercise of the power;
(d) a stay should not be ordered unless the conduct of the party in default warrants the condemnation inherent in such an order;
(e) the power is not to be used simply as a means of enforcing payment of the costs in question unless there are grounds for concluding that the party in default is recalcitrant and is capable of remedying the default.

The principles arose out of the case of Gao v Zhang [2005] VSCA 200, discussed by the Court of Appeal in Rozenblit v Vainer at [57]:

57 In Gao v Zhang, this Court upheld an order staying a proceeding pending payment of a series of costs orders. The plaintiff had harassed the defendant persistently with interlocutory applications over minor procedural matters, which were of progressively less merit over time.[51] In the course of his reasons, Ormiston JA (with whom Vincent JA agreed), said that it was necessary to ‘sound a word of warning lest it be thought that orders of this kind can be adopted as a dayto-day means of recovering costs ordered by the court’.[52] The power to stay the proceeding ‘ought not to be employed unless it is the only fair way of protecting the interests of the party seeking such an order’.[53] It was in that context that he described what was said by Dixon J in Cox v Journeaux [No 2] as the ‘basal principle’.[54]

Gao v Zhang was decided at a time when costs were able to be taxed immediately, and therefore a party could incur a substantial debt before the conclusion of the proceeding. As such, the Court of Appeal in Rozenblit v Vainer discussed whether the principles in Gao v Zhang still have application where, because of R 63.20.1, there are fewer circumstances where costs orders will be payable before the conclusion of a proceeding:

61 At the same time, the change in the Rules means that the power in r 63.03(3) now arises for exercise only in cases where the Court has already decided that something in the conduct of the proceeding has warranted the making of an order that costs ordered against a party in an interlocutory matter be taxed immediately. That factor cannot be overlooked. The fact that the Court has required that the costs in question be paid before the proceeding concludes indicates that the case is unusual. The Court’s reasons for imposing that requirement must therefore be taken into account.[60] But it remains the case that a stay should not be ordered simply to give effect to an interlocutory costs order that is taxable immediately. Such an order, after all, will give rise to a debt that may be able to be pursued by other means of enforcement. 

62 The above analysis is consistent with the other relevant development since Gao v Zhang was decided: the enactment of the CPA. As is well-known, the Court is required, when exercising its powers under the Rules, to seek to give effect to the overarching purpose of the CPA, being ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.[61]The grant of a stay represents the extreme case where the dispute is not to be resolved at all pending the meeting of a costs order. Consistently with the approach in Gao v Zhang, that circumstance can only arise when there is no other fair and practical way of ensuring justice between the parties.

That is, the approach remains the same because of the overarching purpose in section 7 of the Civil Procedure Act 2010 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

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.

New costs regime for the Supreme Court of Victoria: Supreme Court (Chapter I New Scale of Costs and Other Costs Amendments) Rules 2012

The Supreme Court (Chapter I New Scale of Costs and Other Costs Amendments) Rules 2012 is a significant amendment to Order 63 (costs) and the Scale of Costs in the Supreme Court (General Civil Procedure) Rules 2005. The amendment commences on 1 April 2013 in relation to all proceedings irrespective of commencement date (that is, it applies to proceedings commenced before 1 April 2013).

2 major changes include the removal of the 3 current bases of taxation (being party-party, solicitor-client and indemnity) and the replacement with ‘standard basis’ (being all costs reasonably incurred and of reasonable amount) and ‘indemnity basis’; and the alteration of the Scale of Costs to a time charging basis of 6 minute units.

In terms of the time-value of the Scale of Costs, the following are the hourly rates for attendances by a legal practice (based on the 6 minute units):

• Item 1(a) attendance requiring legal skill or knowledge, $36 per 6 min, being $360 per hour.
• Item 1(b) attendance requiring legal skill or knowledge by an employee who is not a legal practitioner, $27 per 6 min, being $270 per hour.
• Item 1(c) attendance not requiring legal skill or knowledge capable of being performed by a clerk $21 per 6 min, being $210 per hour.

Where the attendances in the Scale of Costs are not based on folios or individual attendance charges, they are based on the timed charges above. 

Counsel's fees are a maximum of $500 per hour and $5,000 per day for junior counsel, and $750 per hour and $7,500 per day for senior counsel.

The scale is expressed to be GST exclusive, so the above rates are the GST exclusive figures.

I have included below the explanation from the Supreme Court, followed by the Practice Note (1 of 2013):

Explanatory note

Commencing on 1 April 2013 the Supreme Court (Chapter I New Scale of Costs and Other Costs Amendments) Rules 2012 introduce a new scale of costs for the Supreme Court and make significant amendments to aspects of the costs rules. 

The new Rule 63.90 will provide that the Rules as amended

“apply to all things done or required to be done or omitted to be done on or after 1 April 2013 in or in relation to, any proceeding in the Court… regardless of the date of commencement of the proceeding”.

The Court has also issued Practice Note No 1 of 2013 which includes a summary of the changes, an explanation of the process for applications for allowance of counsel fees in excess of scale, and the guideline figure for allowance for the reproduction of documents (22 cents per printed side of a page). 

All lawyers practising in the Supreme Court civil jurisdiction should familiarise themselves with the changes. 

In summary, the major changes to the Rules are

• The current bases for taxation will be replaced with the following:

i. standard basis- all costs reasonably incurred and of reasonable amount 

ii. indemnity basis- (as now) all costs except in so far as they are of an unreasonable amount or have been unreasonably incurred.

• Interlocutory costs orders are not to be taxed until the completion of proceedings unless the Court orders otherwise. 

• The parties’ costs in the proceeding, unless the Court orders otherwise, will include reserved costs, the cost of an interlocutory application if no order is made or the order is silent as to costs, and costs thrown away by reason of amendment to a pleading or of and occasioned by amendment to a pleading. 

• Proceedings for debt or damages which do not recover amounts over $100,000 only attract County Court costs unless the Court orders otherwise. 

The main changes to the Scale of Costs are:

• The scale is exclusive of GST 

• The scale has been changed to allow a higher hourly rate for attendances charged in 6-minute units in line with most time recording systems currently used by law firms. The hourly rates actually charged by the individuals who performed the work will need to be included in the bill as well. 

• The cost of photocopying is entirely discretionary in the scale. Guidelines for photocopying will be issued from time to time. 

• The scale provides an allowance for solicitors to approve documents drawn by Counsel prior to filing and service. 

• The scale provides for the leaving of messages by email or SMS or other means that are 20 words or less. 

• The charges for letters include delivery by any means. No additional charge applies. 

• The scale includes a charge to receive correspondence by any means and placing a copy of the letter on a file. This includes the printing of emails or facsimiles. 

• The scale differentiates between perusal, scanning and examination of documents. 

• Items 11, 12, and 13 of the scale include allowances for review and consideration, delegation and supervision, and research. 

• The scale provides allowances for redaction and collation, pagination and indexing of documents.

• Item 17 of the scale includes an allowance of an additional amount having regard to the circumstances of the case. 

• Fixed fees are provided in relation to Corporations short form bills. Additional costs in the way of reasonable disbursements can be allowed.

Tips

• An order for costs will by default mean reasonable 'costs' (standard basis) not the lower recovery test of 'necessary or proper' (party and party basis). Parties seeking orders on a different basis will require a specific order to that effect.
• An order for indemnity costs means on scale - so if the intention is to order that costs be taxed on the basis of the costs agreement in place between the party and their lawyers this will need to be articulated in the order.
• Parties who wish to recover interlocutory costs before the conclusion of proceedings will need to apply for a order that the costs be taxed forthwith.
• Amendments to pleadings will be costs in the proceeding unless the Court orders otherwise. If a party seeks costs 'thrown away' (i.e. wasted as a result of the amendment) or costs 'of and occasioned by' (i.e. future costs arising from the amendment) they need an order to this effect.
• Counsel must ask for an order if they are contending for costs to be recovered from the other party over and above the maximums in the scale ($7,500 for senior counsel and $5,000 for junior counsel). They can either seek an order for a specific sum, or an order that a figure above the maximum is appropriate with the quantum to be determined by the Costs Court on taxation.

Practice Note (No. 1 of 2013)

The New Scale of Costs and Counsel fees

1. The Chief Justice has authorised the issue of the following practice note.

2. Significant changes have been introduced to the Supreme Court of Victoria scale of costs contained in Appendix A and to the provisions in Rule 63 of the Supreme Court (General Civil Procedure) Rules 2005 generally. The changes are effective from 1 April 2013 and apply to work undertaken after that date.

3. The basis of allowance of costs has changed to abolish the default “necessary or proper” test for party and party costs. The standard basis of costs that are “reasonable in amount and reasonably incurred” is now the usual basis for assessment or taxation of party and party costs. Indemnity costs may be allowed if the Court so orders.

4. The scale in its preamble allows the Judge, Associate Judge, Costs Judge, Judicial Registrar or costs registrar full discretion to allow any fee, cost or disbursement in full or in part or such other fee, costs or disbursement as is fair or reasonable to compensate for the work actually done.

5. Item 19 in the new scale now contains maxima fees for Counsel. Where costs are taxed pursuant to an order of the Supreme Court, Counsel’s fees in excess of scale cannot be allowed by the Costs Court unless the Supreme Court otherwise orders. Therefore where costs are sought pursuant to an order of the Supreme Court, and a party seeks sums for Counsel’s fees in excess of the maximums in the scale, an application will need to be made to the Supreme Court at the time a costs order is sought and an order made that Counsel’s fees in excess of the scale be allowed before they can be allowed on taxation by the Costs Court.

6. The Supreme Court may fix the rate or amount of Counsel’s fees above scale, or direct the Costs Court to allow the fees of Counsel in excess of scale when assessing or taxing the costs. In the latter case the Costs Judge, Judicial Registrar or Costs Registrar will fix the rate of charge in excess of the scale amount.

7. The Costs Court will only have a full discretion to allow fees in excess of the maximum in limited circumstances. For example, pursuant to a Notice of Discontinuance or arising from the acceptance of a formal Offer of Compromise, or taxation pursuant to the terms of a Release, or in reviews under the Legal Profession Act 2004 where the reviews are conducted in accordance with scale.

8. Additional changes have also been made including:

(a) The scale is exclusive of GST. This amendment allows legal practitioners who charge their clients on scale to add GST to the total sum to be charged. 

(b) The scale has been changed to allow a higher hourly rate for attendances but now in 6-minute units in line with most time recording systems currently used by law firms. The hourly rates actually charged by the individuals who performed the work will need to be included in the bill as well. 

(c) The cost of photocopying is entirely discretionary in the scale. Guidelines for photocopying will be issued from time to time. The guide is not intended to limit the discretion to allow higher or lower fees if it is considered appropriate. Guidelines appears at paragraph 11 below. 

(d) The scale provides an allowance for solicitors to approve documents drawn by Counsel prior to filing and service. 

(e) The scale provides for the leaving of messages by email or SMS or other means that are 20 words or less. 

(f) The charges for letters include delivery by any means. No additional charge applies. 

(g) The scale includes a charge to receive correspondence by any means and placing a copy of the letter on a file. This includes the printing of emails or facsimiles. 

(h) The scale differentiates between perusal, scanning and examination of documents. 

(i) Items 11, 12, and 13 of the scale include allowances for review and consideration, delegation and supervision, and research. Applications to the Costs Court for allowances for these items will need to be supported by file notes or other means. The Costs Court has a full discretion to make allowances for claims made pursuant to these items depending on the proof produced and the particular claims made for perusal, scanning and examination in the bill of costs. 

(j) Any claim made for research will not be allowed unless the research involves a legal question of some complexity that is not procedural in nature.
(k) The scale provides allowances for redaction and collation, pagination and indexing of documents. These allowances are for the time taken to complete each task that is reasonable in the circumstances. 

(l) Item 17 of the scale includes an allowance of an additional amount having regard to the circumstances of the case. Rule 63 provides that bills of costs are to be prepared on an itemised and chronological basis without differentiation between instructions for brief or preparation for trial work and any other work. 

(m) Fixed fees are provided in relation to Corporations short form bills. Additional costs in the way of reasonable disbursements can be allowed.

10. Appendix B of the scale includes allowances for Witness Expenses and interpreters’ fees. An additional fee or higher fees may be allowed if the Court makes an order for a higher rate.

11. Guide to reproduction of documents

The scale of costs allows a discretion in relation to copy documents. The new scale provides at item 4 that reproduction by photocopy or other machine made copy including hard copies of electronic documents shall be at the discretion of the Costs Court.

As a guide, the Costs Court will allow reproduction as follows:

Reproduction— 

for each printed side of a page
0.22

If printed out of the office, the amount charged by the service provider should be claimed as a disbursement and will be allowed if reasonable.

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.

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.

Simpson v Rowe [2011] VSC 149 - barrister's lien over settlement proceeds

The matter of Simpson v Rowe [2011] VSC 149 (Simpson) involved a hearing in the Supreme Court of Victoria before Habersberger J. In Simpson, a barrister successfully argued that he had a lien over a client's settlement proceeds. I have included a case summary below.

Dimos v Hanos & Egan [2001] VSC 173 - recovery of counsel's fees

I was recently involved in a matter in which a barrister was suing for fees, and the solicitor was defending the proceeding on the basis that it was merely the agent of the client, and had no liability to the barrister.

The matter of Dimos v Hanos & Egan [2001] VSC 173 (Dimos) is a fairly comprehensive discussion of the law concerning who is liable when a solicitor briefs a barrister. It also has a good discussion of the history of recovering barrister's fees. Dimos is authority for the proposition that who is liable for counsel's fees is a question of fact to be determined on an objective basis and rests upon the principles of contract law. I have included below a summary of Dimos and extracts on the law concerning this issue.