April 11, 2016
In Re Manlio (No 2)  VSC 130 Justice MacDonald took quite serious action under powers under the Civil Procedure Act 2010 (the “CPA”) with significant consequences for a counsel involved in the case. This decision relates to the conduct of the legal representatives, not the substantive case itself. That decision was handed down on 21 December 2015 in Re Manlio  VSC 733.
It is a particularly informative decision as to Read the rest of this entry »
In Cohen & Ors v Amberley Corporation Australia Pty Ltd  VSC 140 Derham AsJ considered an application for discovery in relation to the administration by a trustee of a discretionary trust. What started out as a consideration of the plaintiff’s application concluded with part of the statement of claim being struck out. It is a very useful decision in the practical side of pleading breach of trust, which can be quite complicated.
The plaintiffs are the children of Harold Campbell-Pretty (‘Harold’) and Kerry Ainley Watkins (‘Kerry’). After 2 divorces he ultimately married Krystyna Campbell-Pretty (‘Krystyna’) . On 27 March 1975, the Campbell-Pretty Family Trust was established by a deed of settlement (‘Trust’ or ‘Trust Deed’). Under its terms Harold was specified as the Appointor and each of the plaintiffs were specified as Primary Beneficiaries .
There were two variations to the Trust Deed:
- on 29 December 1987 the defendant was appointed Trustee in place of the previous Trustee. From about December 1986, Krystyna and Harold were the directors of the defendant. On 29 December 1987, Krystyna was appointed as an additional member of the class of General Beneficiaries under the Trust ;
- on 8 July 2005, the defendant as Trustee of the Trust purported to exercise a power given by clause 20 of the Trust Deed declaring that the plaintiffs were ‘deleted’ as Primary Beneficiaries under the Trust. Harold, as Appointor, consented to the variation .
Harold died on 25 May 2014. Krystyna was his executrix. The plaintiffs received nothing.
Breach of trust claim
The plaintiffs pleaded Read the rest of this entry »
February 18, 2016
In B J Bearings Pty Ltd v Whitehead  VSC 44 Hargrave J considered an application for preliminary discovery and set out the applicable principles. It is a useful Read the rest of this entry »
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 »
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
Practice Note CM 17 released on 1 August 2011, taking effect on 9 October 2013. It is found here. It is identical to the revoked CM 17. Both notes are identical except regarding the Opt Out Notice, Form 21. The media release explains the changes as
On 9 October 2013 the Chief Justice revoked Approved Form 21 – Opt Out Notice approved for the purposes of the Federal Court Rules 2011. At the same time he approved a revised version of this form.
The amendment to this form inserts an address to which the completed form should be sent
The practice note provides:
1.1 This Practice Note Read the rest of this entry »
January 7, 2013
The Civil Procedure Amendment Act 2012 will come into effect on 1 May 2013.
The key amendments relate to orders the court may make on costs, the conduct of experts and expert reports and amendments to the certification process. Those provisions as well as the explanatory memoranda are extracted below. The transitional provisions are not extracted below.
The material amendments are:
Part 4.5 of Chapter 4 (Costs)
65A Order to legal practitioner as to length and costs of trial
(1) A court may Read the rest of this entry »
April 12, 2012
Today Justice Beach, in Barrow v McLernon & Anor  VSC 134 handed down a very interesting and useful decision regarding discovery and the operation of section 27 of the Civil Procedure Act. It is an appeal from a decision of an Associate Justice.
The Plaintiff is suing Hugh McLernon and IMF (Australia) Limited for defamation arising out of the publication on 30 May 2011 of an email and two pdf attachments . The Plaintiff wishes to use documents discovered in this proceeding in support of issuing other proceedings, also a cause of action in defamation . Five documents discovered constitute Read the rest of this entry »
June 7, 2011
In Cohen v State of Victoria Nos 3 (“Cohen”) Forrest J ordered indemnity costs against solicitor for the plaintiff, Oldham Naidoo, arising out of the application by the defendants in Cohen v State of Victoria No 2 which resulted in the proceedng being struck out as an abuse of process (which I reviewed here).
The relevant conduct upon which the court exercised its discretion is set out at :
(a) the issuing of the proceeding on 24 December 2008 in the name of Dr Cohen without obtaining his instructions or authorisation to do so;
(b) the maintenance of the claim (for nearly two years) in the name of Dr Cohen without any communication to him advising that he was the named representative plaintiff and therefore the subject of a number of obligations including that imposed by s 33ZD of the Supreme Court Act 1986 (Vic);
(c) the incurring of a number of costs orders against Dr Cohen – none of which were brought to his attention;
(d) the making of an allegation in the statement of claim central to Dr Cohen’s “claim” which, upon any reasonable investigation, was demonstrably false.
The key issues for consideration was whether there should be an award of costs against a legal practitioner acting without the authority of the client and, if so, whether to grant those costs on an indemnity rather than a party/party basis. In support of the former proposition Forrest J referred to the English case of Fricker v Van Glutten where his honour Read the rest of this entry »