Service in the Magistrates' Court - 'place of residence'

One of the peculiarities of the Magistrates' Court General Civil Procedure Rules 2010 which remains unchanged after this year's substantial amendment is Rule 6.03(1)(b) (previously Rule 5.03(1)(b)), which permits service in the following circumstance:

by delivering a copy of the document to the place of residence of the person to be served to a person apparently above the age of 16 years who resides at that place but when the place of residence is a hotel, boarding house or similar establishment, to some person apparently above that age who is apparently in charge of the establishment or engaged in the office of the establishment...

As the learned author notes in Williams Civil Procedure (at [MC 5.03.0]), this mode of service is peculiar to the Magistrates' Court of Victoria and service in this way would not be valid in the Supreme or County Courts of Victoria unless authorised by an order for substituted service.

Of course, the main problem with this provision is what happens when a person disputes that service occurred at his or her place of residence. For instance, if a defendant is interstate for some time and process is served on a person living at the defendant's home address, does this amount to effective service? What is a person's 'place of residence' for the purpose of Rule 6.03(1)(b)?

Expert evidence 103 - Formal report requirements

In my previous two posts 'Expert evidence 101' and 'Expert evidence 102' I discussed what expert evidence is and when it is required. When an expert is retained for the purpose of giving an opinion for the trial of a matter, the expert must prepare a report setting out his or her opinion and, if the party retaining the expert is happy with the report, the report is given to the other side in support of that party's case.

So what are the formal requirements for preparing an expert report? Compliance with the formal requirements is crucial for ensuring that the trial of the matter goes smoothly, and that there are no technical objections which could prevent a Court from admitting the report and the evidence of the expert. I have provided a discussion of the formal requirements below.

Competition glossary

I am often mystified by the language adopted to explain competition conduct. Even when I work out what it means, I still scratch my head when I try to work out how a particular term came to describe a certain kind of conduct.

I have put together a basic glossary of these terms below with the assistance of the Competition and Consumer Act 2010 (Cth) and the summaries set out in the ACCC website. I have restricted my definition of each term to three lines or less (as read on my blog). I have hyperlinked the particular term to the appropriate explanatory webpage from the ACCC website, and I have hyperlinked the section number in brackets to the appropriate section of the consolidated Competition and Consumer Act 2010 (Cth) from AustLII.

Dimos v Hanos & Egan [2001] VSC 173 - recovery of counsel's fees

I was recently involved in a matter in which a barrister was suing for fees, and the solicitor was defending the proceeding on the basis that it was merely the agent of the client, and had no liability to the barrister.

The matter of Dimos v Hanos & Egan [2001] VSC 173 (Dimos) is a fairly comprehensive discussion of the law concerning who is liable when a solicitor briefs a barrister. It also has a good discussion of the history of recovering barrister's fees. Dimos is authority for the proposition that who is liable for counsel's fees is a question of fact to be determined on an objective basis and rests upon the principles of contract law. I have included below a summary of Dimos and extracts on the law concerning this issue.

Namberry Craft Pty Ltd & Anor v Watson & Anor [2011] VSC 136

Namberry Craft Pty Ltd & Anor v Watson & Anor [2011] VSC 136 (Namberry Craft) involved a hearing before Vickery J in the Supreme Court of Victoria. The hearing was brought on by originating motion for certiorari and/or prohibition in respect of a Magistrates' Court of Victoria decision to grant leave for a plaintiff to amend a statement of claim during closing submissions. The matter in the Magistrates' Court of Victoria involved a claim by Mr Watson (as plaintiff) against a syndicate (as defendants) for 10% of the winnings of a Tattslotto ticket which the syndicate denied it owed to the plaintiff.

Vickery J heard the matter in the Supreme Court of Victoria and provided an excellent discussion and summary of case management issues and Aon Risk Services Australia v Australian National University [2009] HCA 27 (Aon).

Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186

In the matter of Anton Fabrications (NSW) Pty Ltd - Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186 (Anton Fabrications) was an hearing for the winding up of a company. The main issue was whether the creditor properly served a creditor's statutory demand (the demand).

In Anton Fabrications, a creditor served a demand on a company in respect of a loan for $500,000 said to be made by the creditor to the company. A process server purportedly served the demand in a sealed envelope addressed to the company by leaving it in the letterbox situated inside the boundaries of a residential property which was nominated as the company's registered office.

Magistrates' Court General Civil Procedure Rules 2010 - greater uniformity

You are probably aware of this already, but in case you aren't, the Magistrates Court of Victoria has finally changed its rules so that they are largely uniform with the Supreme and County Court Rules. Here is the AustLII version of the consolidated Magistrates' Court General Civil Procedure Rules 2010 (Vic) (the 2010 MCV Rules). The 2010 MCV Rules came into operation on 1 January 2011 and they apply to every civil proceeding commenced in the Court, whether before, on or after the commencement date.

I have included below a brief discussion of the new rules and how they differ from the Supreme Court (General civil Procedure) Rules 2005 (Vic) (the VSC Rules). The differences appear to arise because of an attempt by the drafters to simplify the equivalent rule for the Magistrates' Court (e.g. no writ, simpler pleading rules) or because of the Magistrates' Court has a narrower and more limited jurisdiction than the Supreme Court of Victoria (e.g. no administration of estates, no appeals).

Civil Dispute Resolution Bill - federal pre-litigation procedures

The Civil Dispute Resolution Bill (the CDR Bill) was recently passed by both houses of the Commonwealth Parliament. As far as I am aware it has not received Royal Assent, but I will let you know when it does. Generally speaking, the CDR Bill requires the parties to undertake 'genuine steps' to resolve a proceeding before it is commenced, and requires the parties to make a statement about those steps when issuing proceedings. I have included a discussion and summary of the CDR Bill in this post.

Repeal of the pre-litigation requirements from the Civil Procedure Act 2010 (Vic)

The Civil Procedure and Legal Profession Amendment Act 2011 (Vic) was recently passed by the Victorian Parliament and is effective from 30 March 2011. The purpose of this amendment as set out in s1 of that act includes: 'to amend the Civil Procedure Act 2010 to repeal Chapter 3 and other provisions relating to pre-litigation requirements.' This article discusses the amendment in detail.

Misleading or deceptive conduct - reasonableness of reliance

I read an interesting case summary which was linked on twitter the other day. It's the matter of Bonhomme v. St. James — N.E.2d —, 2011 WL 901966 (Ill.App. 2 Dist. March 10, 2011) (Bonhomme) in the Appellate Court of Illinois. It was a matter about fraudulent misrepresentation in creating a false identity over the internet. The Judges had some interesting comments about reasonableness of reliance which made me reflect on the Australian authories concerning reasonableness of reliance on misleading or deceptive conduct (now s18 of the Australian Consumer Law, previously s52 Trade Practices Act 1974 (Cth)).