Federal Court Amendment (Electronic Court File Measures No. 1) Rules 2013 comes into effect tomorrow, 26 November 2013

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 »

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 (6 November 2013): Practice and procedure, Discovery, documents subject to client legal privilege mistakenly listed as non-privileged in appellants’ Lists of Documents, privileged documents inadvertently disclosed to respondents’ solicitors

November 21, 2013

In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] 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 »

Fisher v Houston [2013] FCA 1026 (11 October 2013): Privacy Act 1988, preliminary discovery, costs

October 15, 2013

In Fisher v Houston [2013] 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 [1] Fisher never Read the rest of this entry »

Amendement to Federal Court Practice Note CM 17 regarding representative proceedings under Part IVA of the Federal Court of Australia Act 1976

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.  Introduction

1.1   This Practice Note Read the rest of this entry »

Civil Procedure Amendment Act 2012 assented to and to come into effect on 1 May 2013

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 »

Barrow v McLernon & Anor [2012] VSC 134 (12 April 2012):Discovery, use of discovered documents in subsequent proceedings, use discovered documents to amend pleadings, ss 26 and 27 of Civil Procedure Act 2010 & s35 Defamation Act 2005

April 12, 2012

Today Justice Beach, in Barrow v McLernon & Anor [2012] 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 [1]. The Plaintiff wishes to use documents discovered in this proceeding in support of issuing other proceedings, also a cause of action in defamation [2].  Five documents discovered constitute Read the rest of this entry »

PRACTICE AND PROCEDURE Costs sought by defendants against plaintiff’s solicitors, indemnity costs; Cohen v State of Victoria & Ors (No 3) [2011] VSC 229 (2 June 2011)

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 [5]:

(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 »

Practice and procedure, pleadings required to define issues, procedural fairness to defendants,obligations on legal practitioners to assist the Court, model litigant;Director of Consumer Affairs Victoria v Scully & Ors (No 2) [2011] VSC 239 (1 June 2011)

June 6, 2011

On 3 June Hargrave J made an interim ruling as to the further conduct proceedings in Director of Consumer Affairs Victoria v Scully & Ors (No 2) (Scully).  It is an important decision in considering the approach the court should take to civil prosecutions brought by the Director of Consumer affairs under the Fair trading Act.


The proceedings relate to two schemes promoted by Scully and others designed to allow consumers with financial problems to acquire their own home without a deposit or finance from banks or financial institutions in the short term [8].  The Director brought an action under sections 9, 11 and 12 of the Fair Trading Act in the public interest and representing the interests of certain individuals who participated in the schemes.  There were no pleadings and Associate Justice Daley dismissed an application to order a statement of claim [10 at footnote 1].

On 10 May 2011 the trial was adjourned, part heard, until 26 July 2011. The court called the parties back because of concerns as to the course the trial was taking.  His Honour was concerned that since the proceedings had been issued the nature of the allegations were contained across and originating motion, numbering 50 pages but drawn in broad terms, voluminous affidavit material, running to 11,000 pages over 26 volumes, and written outline of submissions which was at “..a high level of generality” [10]. As a consequence the court was reliant upon the Director and his legal representatives to identify his case, which the did not occur in the first four days of trial [11]. His Honour was quite critical of the assistance provided by the Director (see [15]) saying “..the Court requires significantly greater assistance from the Director than has been provided to date.”

The court was of the view that pleadings were necessary to define the many issues in the case and avoid possible injustice to the defendants ([3][4]).



At [26] the Court cited Mason and Gauldron’s statement in Banque Commerciale SA v Akhil Holdings Ltd that the function of pleadings “..is to Read the rest of this entry »

Civil Procedure, summary judgment, abuse of process, strike outs; Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corporation Limited & Ors (Ruling No 1) [2011] VSC 167 (10 May 2011) & ruling (2) & Cohen v State of Victoria & Ors (No 2) [2011] VSC 165 (13 May 2011)

May 26, 2011

In three rulings relating to group proceedings issued under Part 4 of the Supreme Court Act Forrest J considered an application to regularise proceedings and an application to dismiss on the basis of an abuse of process in Matthews v SPI Electricity Pty Ltd Ruling Nos 1 and,  Cohen v State of Victoria & Ors (No 2) and in Matthews v SPI Electricity Pty Ltd Ruling Nos 2 an application for summary judgment and to strike out aspects of the statement of claim.


The claim in Matthews arose out of the Black Saturday bush fires.  The firm Oldham Naidoo (“Naidoo”) issued proceedings in the name of a Mr Keane for damages against SPI amongst others. Naidoo did not have instructions from Mr Keanne to issue the proceedings in his name.  Keane asked Naidoo to remove him as a plaintiff, something that did not happen for another year.  Matthews then replaced Keane as representative plaintiff.  After Maurice Blackburn took over conduct of the proceeding it brought Naidoo’s actions to the attention of the court and applied to regularise the proceedings.  The defendants resisted the application and sought variously to strike out the claim and obtain summary judgment.

In Cohen Naidoo issued a group proceeding in Dr Cohen’s name without his knowledge.  Naidoo sought but failed to find a person to be substituted for Cohen.  There had been a substantial history of amendments to the statement of claim. The court considered the application to strike out the proceeding as an abuse of process.

Ruling nos 1 

Lack of authority in a solicitor issuing a proceeding – does it render it a nullity

In opposing the application to regularise the proceeding SPI submitted Read the rest of this entry »

Indemnity costs, Calderbank offers; Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability & Environment (No 2) [2010] VSC 513 (12 November 2010)

November 15, 2010

In September Croft J found for the Defendant in Auswest Timbers v Secretary to the Department of Sustainability. Last Monday in Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability & Environment (No 2) [2010] VSC 513 Croft J considered the costs issues in this proceeding, specifically the operation of Calderbank offers and the appropriate costs orders where it is alleged that a case was hopeless or there was no chance of success from the outset.

Calderbank offers

Croft J undertook a very thorough analysis Read the rest of this entry »