December 9, 2013
Today the Federal Court announced the transition to complete electronic filing and storage by the end of 2014. Many in the profession have known for some time of the Federal Court’s preference for moving in this direction.
Details of the process are as follows (and found here):
Federal Court of Australia’s Electronic Court File
The Federal Court of Australia is an early adopter of the use of information technology to increase the effectiveness, efficiency and accessibility of the Court. Technology has, and will continue to change court operations, similar to the ways in which technology has affected business practices across the globe.
The Court is currently undertaking an important change in its internal operations – it will transition from paper based information management to digital files. This transition is called the Electronic Court File (ECF) project.
This change will primarily affect the internal functions of the Court but will also provide opportunities for Court users to expand how they interact with the Court.
The ECF project is a further step towards the creation of a single web-based interface, which will effectively integrate the electronic provision and management of information and services. We use the term my files to describe the service. Registered court users will be able to see immediately a list of their files or more precisely, the information or documents they are authorised to access on the Court’s files. They will be able to undertake electronic interaction with the Court and other court users, in respect of my files (ie. your files).
The key aims of the project are to:
November 25, 2013
The Federal Court Rules 2011 have been amended to support the first stage of the implementation in the Federal Court of an electronic court file.
The amendments will make relatively minor changes to such things as the use of stamps and seals; preparation and lodging of documents; redacting, amending and removing documents; and producing documents for inspection or in compliance with a subpoena.
According to the notification from the Fedeal Court the the Amendment Rules will:
1. amend subrules 2.01(2) and (3) and paragraph 39.35(1)(b) and Schedule 1 to clarify that either the seal of the Court (for convenient processing electronically) or the stamp of a District Registry (for convenient processing in paper) can be used;
2. insert new rules Read the rest of this entry »
This practice note deals with cross-border insolvency co-operation with foreign courts. It is found here.
The amendment is the inserttion of paragraph 6 Read the rest of this entry »
The Federal Court has issued a new Practice Note APP 2, dealing with the Court’s requirements for Appeal Books and preparation for hearing. It is found here.
The amendments include Read the rest of this entry »
November 24, 2013
The Court of Appeal in Wolfe v Permanent Custodians  VSCA 331 considered issues of duty to co operate in the context of a contractual relationship and unconscionability by a creditor in recovery proceedings against a defaulting mortgagor.
Permanent Custodians Ltd (“Permanent”) holds a first mortgage over a property in Pascoe Vale which secured a loan to Mr Wolfe and his former partner . In 2008 there was default on the loan. In August 2009 Permanent obtained default judgment against Wolfe, a default judgment for the loan and for possession of the Property against his former partner and issued a warrant of possession. Eviction by the Sheriff was scheduled for the week commencing 4 December 2009 . Wolfe entered into an arrangement, on terms set out in a letter from Permanent’s solicitors on 1 December 2009 (the “1 December 2009 arrangement”).
Those terms were, at ,relevantly:
November 21, 2013
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited  HCA 46 the High Court, in a unanimous decision, considered a dispute that arose in the discovery process, namely whether the inadvertent disclosure of documents for which privilege should have been claimed gave rise to a waiver. The court however went much further and set its stamp on how it regarded such disputes should be handled.
The appellants were represented by Norton Rose Australia (Norton Rose). The respondents were represented by Marque Lawyers (Marque). On 22 July 2011 parties to litigation Read the rest of this entry »
October 15, 2013
In Fisher v Houston  FCA 1026 Tracey J made orders regarding the award of costs associated with an application for preliminary discovery. The context of the preliminary discovery application relating to a potential claim under the Privacy Act 1988. I was junior counsel for the Applicant in this proceeding.
The prospective applicant (“Fisher”) has a mobile telephone but only provided the number to a limited group of persons. In March 2012 he received a call on his mobile telephone from a journalist, the prospective respondent (“Houston”). Houston asked Fisher for a comment about a legal proceeding in which a business associate of Fisher’s was involved  Fisher never Read the rest of this entry »
October 14, 2013
The Supreme Court considered an urgent application for an interlucotury injunction in a privacy related matter in Candy v Bauer Media Limited  NSWSC 979. The urgent application was made on 20 July 2013 with the decision made and reasons published that same day.
The plaintif, Holly Rachel Candy, is better known in Australia by her Maiden Name, Holly Valance. Sometime Soapie star who later developed a musical, and occasional movie, career. Now a celebrity in the UK married to a wealthy businessman. For those consumers of gossip magazines and celebrity websites this is almost trite. Nevertheless it is not knowledge that would be regarded as notorious and it does not seem to have made its way into the affidavit material with his Honour stating:
- The plaintiff is an actress. She is an Australian Read the rest of this entry »
September 26, 2013
Gordon J in Chan v Four C Realty Pty Ltd (in liq), in the matter of Four C Realty Pty Ltd (in liq)  FCA 928 and then in Chan v Four C Realty Pty Ltd (in liq), in the matter of Four C Realty Pty Ltd (in liq) (No 2)  FCA 959 made orders regarding the enforcement of a contract and then approval for the Liquidator to enter into that contract. The facts are common to both hearings
The Applicant, (“Chan”) applied under sections 471B, 477(2B) and 477(6) of the Corporations Act 2001 (Cth) (the Act) for a series of orders including a declaration that, on 13 August 2013, she and the First Respondent (“Four C Realty”) entered into a binding and enforceable contract for her to purchase its business assets of Four C Realty. The Respondents submitted that no binding contract existed on 13 August 2013 and, alternatively, if a binding contract did exist, then Chan was required to provide security for what has been described as “the indemnity” .
Four C Realty carries on business as an estate agent, conducting Read the rest of this entry »
September 24, 2013
A standard brief for very junior barristers starting out has been to make application to set aside a judgment obtained in default of defence or appearance. The gold standard case setting out the principles was, and to a large extent is, Kostakenellis v Allen. Now the Court of Appeal in Lubura v Nezirevic  VSCA 215 has considered the first element of the test for setting aside judgments, whether the applicant has a defence on the merits. While it is a unanimous decision each of Warren CJ, Osborn JA and Robson AJA each had separate reasons.
The facts are most comprehensively set out in Robson AJA’s reasons.
Early in the morning of Sunday 8 July 2007 the respondent and other friends attended at the Red Star bar in Pultney Street, Dandenong . A fight broke out between two groups, one of which contained the respondent and the other containing the appeallent, both in the bar and outside on the street subsequently. The respondent was surrounded and assaulted by at least two males with bottles, receiving injuries including bruising and laceration to his ear and head, as well as a ruptured globe to his right eye. He lost sight in his right eye as a consequence of the assault. Other members of the group were also assaulted . The appellant was initially charged with four counts: intentionally causing serious injury, and (as an alternative) recklessly causing serious injury, common assault, and affray. On 25 November 2011, a fresh presentment was filed, with two charges to which the appellant pleaded guilty; assault of a person unknown to the Director of Public Prosecutions and affray .
On or about 30 August 2010 the Appellant received the writ in the civil proceeding brought by the respondent. The appellant says Read the rest of this entry »