The Civil Procedure Act’s overarching obligation to keep costs proportionate

The Civil Procedure Act 2010 applies to proceedings in the Magistrates’ Court, County Court, and Supreme Court but not federal courts or VCAT. Its overarching purpose is to

‘facilitate the just, efficient, timely and costs effective resolution of the real issues in dispute’: s. 7. Continue reading “The Civil Procedure Act’s overarching obligation to keep costs proportionate”

Does a subrogated claim give rise to a general res judicata if an insured’s loss is partly insured and partly uninsured?

In De Armas v Peters [2015] NSWSC 1050, the Supreme Court of NSW declined to grant leave to appeal from a decision of the Local Court.  The Local Court had allowed a man to sue for the cost of repairs to his car, even though he had previously sued her for car hire costs he incurred while those repairs were being undertaken.  And even though, in that first case, the Local Court had found him to be the negligent driver, not the woman.  Impossible?  There was of course a twist.  The first suit was brought with the involvement of a car hire company from whom the man had hired the car he used while his car was being repaired. No doubt they had told him that the car would be at no cost to him and the cost of the hire would be recovered by the car hire company’s solicitors from the negligent driver.  The second suit was brought by his insurer, having stepped into his shoes through the law of subrogation.  The man’s losses were partly insured and partly uninsured, hence his deal with the car hire company to which he was probably referred by his repairer.  And the woman’s insurer had not taken any defence of abuse of process in either proceeding before she obtained judgment in the first.  You can watch a discussion between AAMI’s solicitor and barrister about the decision on the excellent BenchTV here. Continue reading “Does a subrogated claim give rise to a general res judicata if an insured’s loss is partly insured and partly uninsured?”

Advocates’ immunity: at once more powerful and narrower than most yet understand

Advocates’ immunity was, until recently, more powerful than many lawyers were aware. Since the 1 July 2015 introduction of the Legal Profession Uniform Law and the High Court’s May 2016 decision in Attwells v Jackson Lallic Lawyers Pty Limited,[1] however, it may be narrower than many realise. And perhaps not everyone is aware that the immunity these days is very likely peculiar to Australia; it is certainly not a feature of English, American, Canadian, Continental, Indian, South African or New Zealand law.[2] Continue reading “Advocates’ immunity: at once more powerful and narrower than most yet understand”

Applications to extend time to tax lawyers’ bills: keep ’em tight

Many disputes about costs are still governed by the Legal Profession Act 2004.  It specified as the time in which to seek taxation a period of 12 months.  Where a bill is given, the 12 month period starts from the date of service of the bill.  But since Collection Point Pty Ltd v Cornwalls Lawyers Pty Ltd [2012] VSC 492, it is clear that clients have until 12 months after the service of the final bill in any particular matter to seek taxation of any previous bill.  Of course what is the final bill in the same matter is a difficult question.  What is clear is that one costs agreement may govern several matters.

Applications to extend time must be made to a Justice of the Supreme Court (as opposed to any decision maker in the Costs Court or any Associate Justice) under s. 3.4.38(6).  The law is well-summarised by John Dixon J in Rohowskyj v S Tomyn & Co [2015] VSC 511, and his Honour’s guidance about the nature of an extension of time application is useful and prone to be overlooked: Continue reading “Applications to extend time to tax lawyers’ bills: keep ’em tight”

The extended duration of the un-renewed practising certificate

Under the Legal Profession Act 2004, if a lawyer applied for renewal of their practising certificate prior to the expiry of the old one, but a decision was not made before the old one runs out, the certificate is extended until either it is renewed or a decision to refuse renewal is finally determined by the exhaustion of all rights of review of that decision.  No one has ever really known what that meant.  There is a statutory review procedure in VCAT and then there are appeals all the way to the High Court.  Are the appeals from the review ‘a right of review of the decision’?  The Supreme Court has now determined that the certificate endures (if not earlier cancelled or suspended by the stipes) until the end of the High Court appeal.

The question arose in Batrouney v Forster (No 2) [2015] VSC 541, handed down by Justice Robson yesterday (see paras [167] – [193]).  It represents a further embarrassment for the Legal Services Board appointed receivers of David Forster’s practice, Hollows Lawyers, with a savage series of costs orders against the receivers in Mr Forster’s favour.  That followed findings that the receivers’ proceedings were in part misconceived, and that they breached more than one provision of the Civil Procedure Act 2010. The question was at what point did Mr Forster cease to hold a practising certificate and so cease to be entitled to claim costs of acting for himself under the Cachia v Hanes (1994) 179 CLR 403 at 411–413 exception to the rule that self-represented litigants are not entitled to costs for work done by themselves.

The question is a matter of significance to practitioners who get themselves fairly deep into trouble.  It means that those whose practising certificates are not renewed may continue to practice and earn income to put towards the legal costs of challenging that decision, and it also means that such practitioners may brief counsel directly in circumstances where, by virtue of Bar rules about direct access, they might not otherwise be able to.  And of course, it also means that if successful in such proceedings, they will get a costs indemnity against the time spent running their litigation.

Mr Forster is a man with his back to the wall, the subject of an avalanche of litigation brought by professional regulators.  Until recently, he had been singularly unsuccessful and much chastised.  It is probably fair to say that some people in the administration of justice, including the profession, would see him as a pariah.  It ought therefore be of some comfort to those responsible for the justice system that this result has obtained.  It suggests that the cab rank principle is alive and well, that judges are capable of dealing with each case impartially on its merits and according to law without being unduly influenced by past cases, and that the State will not protect itself where the law requires that it be dealt with.

SCNSW’s Nine Commandments of Interlocutory Applications in a Civil Procedure Act world

In Tugrul v Tarrants Financial Consultants Pty Limited [No 5] [2014] NSWSC 437, Kunc J, deciding the fifth interlocutory matter in a proceeding, gave a warning to the profession about the need to try hard to resolve interlocutory skirmishes including picking up the telephone.  It was a little reminiscent of the Victorian Court of Appeal’s fulmination in Yara Australia Pty Ltd v Oswal [2013] VSCA 337.  An applicant for security for costs against individual opponents was ordered to pay the costs of the unsuccessful application forthwith and on an indemnity basis. His Honour’s Nine Commandments were:

  1. How do these dicta and the requirements of ss 56 and 59 of the CP Act translate into practice when interlocutory issues arise, including such matters as amendments, strike outs, discovery and security for costs? Assuming compliance by the practitioner with the relevant professional conduct rules, nine points may be made by way of general, practical guidance. Nevertheless, the variety of circumstances confronted in practice means that what follows cannot be exhaustive.
  1. First, it must be emphasised that s 56 of the CP Act and its related provisions are not just pious exhortations to be acknowledged and then ignored. They have real consequences for the clients and lawyers in this Court and are to be applied rigorously in the conduct of all litigation, great or small.
  1. Second, solicitors and barristers are members of a profession. It is of the essence of a profession that relations between its members are characterised by civility, trust and mutual respect. The Court sees far too much correspondence between lawyers that bears none of those qualities. They must never be abandoned at the behest of clients or in the misguided belief that that is what successful representation of a client requires.

Continue reading “SCNSW’s Nine Commandments of Interlocutory Applications in a Civil Procedure Act world”

Section 18(d) of the Civil Procedure Act 2010 (Vic)

Section 18(d) of the Civil Procedure Act 2010 requires litigants and their lawyers alike not to make claims in civil proceedings, or defend such claims, unless ‘on the factual and legal material available to [them] at the time of making the claims’ the claim or defence has ‘a proper basis’.  A court may make any order it considers appropriate in the interests of justice if satisfied that a person has breached s. 18(d): s. 29 and may take any contravention into account in exercising any of its powers, including specifically in relation to costs: s. 28.

As Derham AsJ said in Matthews v SPI Electricity Pty Ltd (No 2) (below):
‘The overarching obligations [including that in s. 18(d)]:

(a)          apply to any legal practitioner or any law practice acting for or on behalf of a party: Civil Procedure Act10(1)(b), (c);

(b)          apply in respect of the conduct of any aspect of a civil proceeding, including, but not limited to any interlocutory application or interlocutory proceeding: Civil Procedure Act11(a);

(c)          do not override any duty or obligation of a legal practitioner to a client to the extent that those duties and obligations and the overarching obligations can operate consistently: Civil Procedure Act13(1); and

(d)          must be complied with by a legal practitioner or a law practice engaged by, or on behalf of, a client in connection with a civil proceeding despite any obligation the legal practitioner or the law practice has to act in accordance with the instructions or wishes of the client: Civil Procedure Act13(2).

In this very workmanlike post, I simply summarise the not particularly illuminating jurisprudence to have emerged around this new provision so far. Continue reading “Section 18(d) of the Civil Procedure Act 2010 (Vic)”