Happy 2013, and the Courts Legislation Amendment (Reserve Judicial Officers) Bill

I just returned from a month long holiday in Vietnam, so apologies to my readers for the absence of posts during the Christmas and January 2013 period. A belated happy new year to all of my readers.

I attended the Victoria Law Foundation's Legal Laneway breakfast yesterday, which was a nice way to start the year amongst friends and colleagues. The Attorney General, Robert Clark, gave a refreshing (and admirably noteless) speech to the crowd. The Attorney's speech reminded me of the Courts Legislation Amendment (Reserve Judicial Officers) Bill which was introduced into Parliament on 13 December 2012, and which has progressed through the first and second reading in the Victorian Legislative Assembly (lower house).

The Bill proposes to repeal the legislation, introduced by the previous government, which created the position of acting judicial officers, and legislate for the creation of the reserve judicial officer. The title may appear similar, but the position differs greatly in practical terms.

The acting judicial officer (either Judge of Magistrate) was a legal professional who was given a temporary judicial position to deal with fluctuations in the judicial workload. This position caused concern to the legal profession, as the acting judicial officer did not have the security of a permanent position and was normally not an experienced Judge of Magistrate. The fact that the position was not permanent gave rise to questions of independence in the role, largely because reappointment was dependent on the attitude of the government at the time.

The Courts Legislation Amendment (Reserve Judicial Officers) Bill allows the Governor in Council to appoint retired and other former tenured Judge of Magistrate, and interstate Judge of Magistrate to the position of reserve Judge of Magistrate.

The explanatory memorandum provides as follows:

The Courts Legislation Amendment (Reserve Judicial Officers) Bill 2012 amends the Constitution Act 1975 , the Supreme Court Act 1986 , the County Court Act 1958 , the Magistrates' Court Act 1989 and the Children, Youth and Families Act 2005 and make consequential amendments to other Acts.

The Bill improves the court and judicial system by providing for the offices  of reserve judge and reserve magistrate, abolishing the offices of acting judges and acting magistrates and making consequential amendments to certain other Acts.

Some highlights of the Courts Legislation Amendment (Reserve Judicial Officers) Bill are:

• The Governor in Council may appoint as many reserve Judge of Magistrate as are necessary for transacting the business of the Court.
• The office of reserve Judge of Magistrate ceases after 5 years or when the reserve Judge of Magistrate reaches the age of 75 years.
• It prohibits a reserve Judge of Magistrate from engaging in legal practice, undertaking paid employment or conducting a business, trade or profession while engaged to undertake the duties of a Judge, without the approval of the Attorney-General.
• It provides that a reserve Judge of Magistrate has the same powers, jurisdiction, immunities and protection as a Judge of Magistrate of the relevant court.
• It provides that a reserve Judge of Magistrate may be employed on a full time or sessional basis, the former being paid at the full judicial rate and the latter paid at a sessional rate. The salaries are to be adjusted if the acting Judge of Magistrate is already receiving a judicial pension.
• Reserve Judges and Magistrates are eligible for re-appointment.
• A reserve Judge of Magistrate cannot be appointed Chief Justice or Chief Judge, President of the Court of Appeal, or Chief Magistrate.

I'll provide an update post if or when the Bill receives Royal Assent.

Supreme Court of Victoria practice note 9 of 2011 - citation

The Supreme Court of Victoria has issued Practice Note 9 of 2011 concerning citation of judgments, including electronically sourced judgments.

It reads as follows:

1. Practice Notes No 3 of 2004 and No 1 of 2006 are hereby revoked. 
2. Where a judgment is reported in an authorised series of law reports, all references and citations must be to, and any copy provided to the Court must be a copy of, the authorised report. 
3. Where a judgment is not reported in an authorised series of law reports but is available electronically, reference must be made to its medium neutral citation. Reference may also be made to any report in an unauthorised series of reports. 
4. Any copies of judgments provided to the Court which are printed from an electronic source must be printed from the Rich Text Format (RTF) or Portable Document Format (PDF) of the judgment where available. Judgments delivered in Australia are generally available in one or both of these formats, with a medium neutral citation, on various websites including the Australasian Legal Information Institute at: www.austlii.edu.
5. At present, to obtain a judgment in RTF or PDF from the above website, it is necessary to take the following steps: 
1. Click on the link to view the judgment. 
2. Choose the “Download” option in the toolbar above the case citation.
3. Click on the “Rich Text Format (RTF)” or “Portable Document Format (PDF)” hyperlink below the heading “Available Data Formats”. 
4. Print the document and provide in this format.
6. Where a judgment is not reported in an authorised series of law reports and is not available electronically with a medium neutral citation, references and citations may be to, and any copy provided to the Court may be from, an unauthorised series of law reports.
7. If a party intends to rely upon a judgment which is not reported in an authorised or unauthorised series of law reports and is not available electronically, a copy of this judgment must be provided to all other parties, and to the Court, as soon as it is reasonably practicable to do so.
8. A copy of a judgment provided to the Court must be printed in portrait, as opposed to landscape, orientation. Copies must not be provided in a reduced size.
9. Where a judgment is divided into numbered paragraphs, all references to that judgment must be to the relevant paragraph or paragraphs and, where the judgment has been published in hard copy, the page on which those paragraphs commence. For example:

• Smith v Jones (2010) 28 VR 415, 420 [45]-[55].
• Smith v Jones [2010] VSCA 14, [56] (medium neutral citation, where 14 is the number of an unreported judgment of the Court of Appeal and 56 is the paragraph in which the cited passage is found).

Reading between the lines, part of the Practice Note suggests that the Court is unhappy with the practice of being provided with screen prints from AustLII and other electronic resources, which is understandable. The Practice Note otherwise reflects the ongoing position that authorised reports are preferred over unauthorised reports.

Caveats - how does someone remove a caveat (part 2)

In my previous post on this topic I discussed the formal requirements for seeking a Court order to remove a caveat from a title. In this post I have discussed below the considerations a Court has when faced with an application to remove a caveat from a title.

Owners corporations - part 1: what do they do?

I was recently involved in a dispute between an owners corporation, an owners corporation manager and a lot owner. The lot owner was claiming that the owners corporation manager had not acted in good faith when carrying out its duty as a manager, and that the owners corporation had breached its duty of care towards the lot owner. The dispute related to repairs to the water services for the lot owner, those water services being part of the shared services of the owners corporation. The lot owner claimed damages in relation to those breaches.

This is the first part of a short series on owners corporations. The series is intended to give the basics of owners corporations, discuss what their duties are and what the consequences are if the duties are breached.

The discussion below is a general discussion introducing owners corporations, what they do and how they delegate their functions.

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.

Zhen v Mo & Ors [2008] VSC 300 - freezing orders

I was recently involved in an application for a freezing order on behalf of an applicant. In that matter, the applicant was seeking to restrain some respondents from dissipating money that the respondents received from proceeds of a sale. The applicant did this because it formed the view that if it did not do so, then any judgment would be unsatisfied by reason of the likely dissipation of the money elsewhere.

I have included a discussion of freezing orders and the matter of Zhen v Mo & Ors [2008] VSC 300 below.

Caveats - how does someone remove a caveat (part 1)

When a caveat is lodged on a title to land, the consequences are severe: generally speaking, the registered proprietor is prevented from disposing of the land the subject of the caveat (see s91 Transfer of Land Act 1958 (Vic) (the TLA).

A person may seek to have a caveat removed by several means, including (by way of summary):

• by the Registrar issuing a notice requesting the caveator either to give notice abandoning the claim or  issuing proceedings to substantiate the claim (s89A TLA);
• by a person lodging a dealing on the title and 30 days have passed since the registrar gave notice to the caveator that the caveat will lapse (s90(1) TLA); or
• By application to the Court to have the caveat removed (s90(3) TLA).

This post and the discussion below concerns application to a Court under s90(3) TLA. Application to the Court is probably the quickest and most certain way to seek to have a caveat removed or substantiated. By way of observation, the provision by the caveator of a notice under s89A TLA that proceedings have been issued to substantiate a claim is not a very high hurdle, and will probably result in delay pending the determination of the proceedings.

Caveats - accuracy of information and amendment

In my previous posts I discussed what is a caveat and what interests a caveat protects. When a person lodges a caveat, the document is quite simple in appearance but it has a great effect upon a registered proprietor's ability to deal with their land.

I have included a link here to the DPI approved caveat form.

The section which is headed 'Estate or Interest claimed' requires a caveator to state the interest which the caveator is seeking to protect. The section which is headed 'Grounds of claim' requires a caveator to state how the estate or interest claimed arises. These sections attract a lot of attention in litigation because a failure to get these details right could render the caveat defective and lead to a Court order that it be removed.

A Court has a discretion to order the removal of an unintelligible caveat. The Court also has a discretion to amend an unintelligible caveat so that it reflects what is actually claimed by the caveator. So how does a Court decide whether to remove or amend a caveat that is unintelligible? I have discussed these issues below in further detail.

Berengo v Amaca Pty Ltd & Anor [2011] VSC 276 - pre-judgment interest rates

The matter of Berengo v Amaca Pty Ltd & Anor [2011] VSC 276 (Berengo v Amaca) was a post-judgment hearing before T Forrest J. The matter was a personal injury claim in which the second defendant was ordered to contribute $150,000 to the first defendant plus $15,000 of contributed costs. The Court said that pre-judgment interest will apply, but it had to determine the appropriate rate as s60(1) of the Supreme Court Act 1986 (Vic) gives the Court a discretion to fix the rate of interest applicable.

I have included a discussion and extracts of this matter below.

Caveats - which interests in land are caveatable interests?

In my previous post on this topic, I noted that the following phrase in s89(1) of the Transfer of Land Act 1958 (Vic) (TLA) determines what interests are capable of protection by a caveat: 'any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise'. I then discussed what is an interest in land for the purpose of this provision.

The interest in land must arise from 'any unregistered instrument or dealing or by devolution in law or otherwise'. In Victoria, there is a divergence of views on what interest in land is afforded protection by a caveat.

I have discussed the divergence of views below.

Caveats - a caveatable interest must be an 'interest in land'

I noted in my previous post on this topic that the following phrase in s89(1) of the Transfer of Land Act 1958 (Vic) (TLA) determines what interests are capable of protection by a caveat: 'any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise'.

Several things are apparent from this sentence. Firstly, the interest to be protected must be an 'interest in land'. Secondly, the interest in land must arise from 'any unregistered instrument or dealing or by devolution in law or otherwise'.

This article and the discussion below concerns what is an interest in land within the meaning of s89(1).

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.

Part IVAA Wrongs Act 1958 (Vic) and the jurisdictional limit of the Magistrates' Court

I was recently faced with an interesting issue in relation to the operation of Part IVAA of the Wrongs Act 1958 (Vic) in the capped jurisdiction of the Magistrates' Court of Victoria (being a claim for a debt, liquidated claim or damages for $100,000).

The facts giving rise to the question go like this:

• a plaintiff has a claim which exceeds the jurisdictional limit of the Magistrates' Court of Victoria (e.g. a claim for $180,000); 
• the plaintiff has elected to proceed in the Magistrates' Court and abandoned the excess so as to cap its claim at $100,000; and 
• there are two or more concurrent wrongdoer defendants who seek to have the claim apportioned between them under Part IVAA of the Wrongs Act 1958 (Vic) .

The question raised by the above facts goes like this:

• in the above circumstances, can the Magistrates' Court make an award against each concurrent wrongdoer for an amount that is less than the jurisdictional limit per defendant (e.g. $90,000 per defendant), but collectively more than the jurisdictional limit (e.g. $180,000 for both); or 
• is the Magistrates' Court restricted to apportioning a claim that is within the jurisdictional limit (e.g. a capped $100,000 claim and an award of $50,000 per defendant if there is a 50/50 apportionment)?

I have discussed this below.

Early neutral evaluations

An early neutral evaluations (an ENE) is a recently introduced form of dispute resolution being used by the Courts in Victoria. It sits somewhere between a mediation and a trial. The Supreme Court of Victoria first piloted the ENE program in 2009 and the Magistrates' Court of Victoria is now piloting the ENE program in 2011.

The Commercial Court of the Supreme Court of Victoria refers matters by consent to ENEs under chapter 11 of the 'Green Book', being practice note no. 1 of 2010 (Chapter 11). ENE is a process where the parties present their cases by way of submission on the facts and the law, and the evaluator (usually a Judge or a Magistrate depending on the Court in which the proceeding is issued) gives a non-binding evaluation of the matter on a confidential and 'without prejudice' basis.

Arbitrations in the Magistrates' Court of Victoria

When the Magistrates' Court Civil Procedure Rules 2009 (the old Rules) were repealed to make way for a set of rules which were more uniform with the rules of the Supreme Court of Victoria (see my previous posts 'Magistrates' Court General Civil Procedure Rules 2010 - greater uniformity' and 'Magistrates' Court General Civil Procedure Rules 2010 - summary of differences with VSC Rules'), order 21 (Arbitration) of the old Rules was incorporated into order 2 of the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010.

The rules concerning arbitrations are unchanged despite the move. Arbitrations are listed for matters where the monetary relief sought is under $10,000 (see s102(1) of the Magistrates' Court Act 1989 (Vic)) and there is a prohibition on exchange of court documents other than a statement of claim, defence and list of documents (see rules 2.04 and 2.05).

Magistrates' Court General Civil Procedure Rules 2010 - summary of differences with VSC Rules

In my previous post 'Magistrates' Court General Civil Procedure Rules 2010 - greater uniformity', I discussed the new 2010 MCV Rules which are largely uniform with the VSC Rules. One good practical outcome of having largely uniform Court Rules is that a practitioner may only have to use volume 1 of Williams' Civil Procedure when in the Magistrates' Court (although this will make assessing costs in the Magistrates' Court difficult as the scale of costs is located in volume 3).

There are some differences which appear to arise between the 2010 MCV Rules and the VSC Rules because of an attempt by the drafters to simplify the equivalent rule for the Magistrates' Court (e.g. no writ, simpler pleading rules) or because the Magistrates' Court has a more limited jurisdiction than the Supreme Court of Victoria (e.g. no administration of estates, no appeals).

I have set out below a list of orders in the 2010 MCV Rules and the VSC Rules which appear to differ from one another. This is not a list of the exact differences in the wording between the two sets of rules. If you are after that, I suggest you run a comparison between the two documents in Microsoft Word. Where I have put a '/' in the heading, I am referring to the following: (heading of the 2010 MCV Rules / heading of the VSC Rules).

Service in the Magistrates' Court - 'place of residence'

One of the peculiarities of the Magistrates' Court General Civil Procedure Rules 2010 which remains unchanged after this year's substantial amendment is Rule 6.03(1)(b) (previously Rule 5.03(1)(b)), which permits service in the following circumstance:

by delivering a copy of the document to the place of residence of the person to be served to a person apparently above the age of 16 years who resides at that place but when the place of residence is a hotel, boarding house or similar establishment, to some person apparently above that age who is apparently in charge of the establishment or engaged in the office of the establishment...

As the learned author notes in Williams Civil Procedure (at [MC 5.03.0]), this mode of service is peculiar to the Magistrates' Court of Victoria and service in this way would not be valid in the Supreme or County Courts of Victoria unless authorised by an order for substituted service.

Of course, the main problem with this provision is what happens when a person disputes that service occurred at his or her place of residence. For instance, if a defendant is interstate for some time and process is served on a person living at the defendant's home address, does this amount to effective service? What is a person's 'place of residence' for the purpose of Rule 6.03(1)(b)?

Expert evidence 103 - Formal report requirements

In my previous two posts 'Expert evidence 101' and 'Expert evidence 102' I discussed what expert evidence is and when it is required. When an expert is retained for the purpose of giving an opinion for the trial of a matter, the expert must prepare a report setting out his or her opinion and, if the party retaining the expert is happy with the report, the report is given to the other side in support of that party's case.

So what are the formal requirements for preparing an expert report? Compliance with the formal requirements is crucial for ensuring that the trial of the matter goes smoothly, and that there are no technical objections which could prevent a Court from admitting the report and the evidence of the expert. I have provided a discussion of the formal requirements below.

Magistrates' Court General Civil Procedure Rules 2010 - greater uniformity

You are probably aware of this already, but in case you aren't, the Magistrates Court of Victoria has finally changed its rules so that they are largely uniform with the Supreme and County Court Rules. Here is the AustLII version of the consolidated Magistrates' Court General Civil Procedure Rules 2010 (Vic) (the 2010 MCV Rules). The 2010 MCV Rules came into operation on 1 January 2011 and they apply to every civil proceeding commenced in the Court, whether before, on or after the commencement date.

I have included below a brief discussion of the new rules and how they differ from the Supreme Court (General civil Procedure) Rules 2005 (Vic) (the VSC Rules). The differences appear to arise because of an attempt by the drafters to simplify the equivalent rule for the Magistrates' Court (e.g. no writ, simpler pleading rules) or because of the Magistrates' Court has a narrower and more limited jurisdiction than the Supreme Court of Victoria (e.g. no administration of estates, no appeals).

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.