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).

Facts

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.

Decision

Principles

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 »

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.

Facts

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]).

Decision

Pleadings

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 »

The Civil Procedure Act willbe proclaimed on 1 January 2011. It will have a significant impact on litigators, both solicitors and counsel, approach and conduct litigation in Victorian Courts and Tribunals.

I will be  providing occasional posts on the  operation of the Act over the next 6 weeks. I have included the second reading speech in its entirety below.

This post focuses on section 1 of the Act. For practitioners the relevant provisons are section 1(2)  is the most relevant provision.  At least in the early stages of this process these provisions will be important in applying the rules of procedure.

It provides

Chapter 1—Preliminary

1   Purposes

(1)  The main purposes of this Act are—

(a)  to reform and modernise the laws, practice, procedure and processes relating to the resolution of civil disputes which may lead to civil proceedings and to civil proceedings in the Supreme Court, the County Court and the Magistrates’ Court and provide for uniformity;

(b)  to simplify the language relating to civil procedure;

(c)  to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute;

(d)  to amend various Acts in relation to the conduct of civil proceedings to reflect the new procedures.

(2)        Without limiting subsection (1), this Act provides for—

(a) overarching obligations for participants in civil proceedings to improve standards of conduct in litigation;

(b)  the facilitation of the resolution of disputes before civil proceedings are commenced;

(c)  the enhancement of case management powers of the courts, including in relation to discovery;

(d)  further enhancement of appropriate dispute resolution processes;

(e)  reform of the law relating to summary judgment;

(f)  clarifying sanctions available to courts in relation to contravention of discovery obligations.

The explanatory memorandum provides:

CHAPTER 1--PRELIMINARY
This Chapter sets out the purpose of the Bill, when the Bill commences,
definitions for terms used and the application of the Bill.

Clause 1   provides  Read the rest of this entry »