Peter A Clarke

In my experience there is a growing tendency of legal representatives copying letters to their opposing numbers to the court when there is a judge allocated to a proceeding.  The Internet makes that feasible and an easy operation.  There is also a tendency to correspond with a judge’s associate, copying the other side.  Both practices are fraught.  Courts try to be flexible and the assistance by some associates in facilitating consent orders is a terrific example of marrying technology with being responsive to parties needs.  The cost and time savings in not having to attend to get an adjournment or the worry in whether a fax has got to the court in time to adjourn a date off is significant.

But there is a limit and there is propriety………….and Singh v Secretary, Department of Employment and Workplace Relations is a salutory lesson in overstepping the line.  

The Full Court’s commentary Read the rest of this entry »

The bane of a litigators life is an unrepresented litigant.  Another burr under the saddle is a corporation represented by an officer.   Unrepresented litigants, with a few notable exceptions, often put arguments that are exciting to make but not relevant.  That is not to say lawyers are free of running ridiculous points.  A few appearances before an overworked judge usually cures an advocate of running silly points.

In Worldwide Enterprises Pty Ltd v Silberman & Anor Forrest  J  heard an appeal by defendants seeking to stay the pleading under Rule 1.7 of hte Supreme  Court Rules until the plaintiff engaged solicitors.  The Defendant also sought security for costs.

Representation Read the rest of this entry »

The Opes Prime collapse is the gift that keeps on giving, litigation and judicial decision wise at least.  Finkelstein J, the judge assigned to the proceeding, has handed down a number of decisions involving the initial insolvency and now the class action. Given the “no quarter” approach that seems to be taken by the parties at this early interlocutory stage more decisions are likely in the future, well before trial.  This decision arose out of an application by the respondents to strike out the statement of claim or summarily dismiss the proceeding. Finkelstein J took the opportunity to review the general principles.

Strike out application (paragraphs 4 – 5,  8 & 10).

Features of a strike out application are: Read the rest of this entry »