Apostolou v Commissioner of State Revenue [2008] VSC 332 - the 'McKenzie friend'

The matter of Apostolou v Commissioner of State Revenue [2008] VSC 332 (Apolstolou) was a hearing before Mandie J in the Supreme Court of Victoria. In Apolostolou, Mandie J considered an application for a a party to be granted leave to be represented by a non-lawyer.

Apostolou was an appeal from a decision of VCAT to impose duty on two land transfers. The appellant said that these transfers were not dutiable as they were the result of a change of trustee in respect of the land (at [4]). The appellant's husband appeared throughout the appeal as a 'McKenzie friend', and also deposed to matters in the affidavits in support. The appellant's case was that the husband was the real owner of the land behind the trusts as he was the settlor, and although his wife's name was in the title of the proceedings, it was really his case (at [15] and [17]). I have discussed this in the summary below.

Useful legal email services

I subscribe to some very useful free legal email services in order to keep up with cases, reforms and issues which affect my practice. Quite a few of my blog posts arise from matters which I have read in these services, particularly my case summaries.

I thought I would share these services with my readers. I have listed below a hyperlinked title of the particular service (the hyperlink is to the website provider of that service), and to the right of the title is a summary of the email service and how I find it useful.  I have ranked the email services in order, so that the most useful service to me is at the top.

Commercial Court newsletter - The Commercial Court of the Supreme Court of Victoria has one of the best email services for commercial lawyers. The emails contain announcements of recent decisions with keywords and a hyperlink to the Commercial Court summary page and the AustLII publication of the case. Occasionally it contains news of a useful conference or international decision/issue. The emails are sent between 4 times per week and 3 times per day, presumably depending on how busy the Court is.

Part IVAA Wrongs Act 1958 (Vic) and the jurisdictional limit of the Magistrates' Court

I was recently faced with an interesting issue in relation to the operation of Part IVAA of the Wrongs Act 1958 (Vic) in the capped jurisdiction of the Magistrates' Court of Victoria (being a claim for a debt, liquidated claim or damages for $100,000).

The facts giving rise to the question go like this:

• a plaintiff has a claim which exceeds the jurisdictional limit of the Magistrates' Court of Victoria (e.g. a claim for $180,000); 
• the plaintiff has elected to proceed in the Magistrates' Court and abandoned the excess so as to cap its claim at $100,000; and 
• there are two or more concurrent wrongdoer defendants who seek to have the claim apportioned between them under Part IVAA of the Wrongs Act 1958 (Vic) .

The question raised by the above facts goes like this:

• in the above circumstances, can the Magistrates' Court make an award against each concurrent wrongdoer for an amount that is less than the jurisdictional limit per defendant (e.g. $90,000 per defendant), but collectively more than the jurisdictional limit (e.g. $180,000 for both); or 
• is the Magistrates' Court restricted to apportioning a claim that is within the jurisdictional limit (e.g. a capped $100,000 claim and an award of $50,000 per defendant if there is a 50/50 apportionment)?

I have discussed this below.

Morris v Riverwild Management Pty Ltd & Ors [2009] VSC 654 - obtaining documents from a party

The matter of Morris v Riverwild Management Pty Ltd & Ors [2009] VSC 654 (Morris) is a 2009 decision in the Supreme Court of Victoria before Gardiner AsJ which concerns the proper form of obtaining documents from another party. I have included a case summary and discussion below.

Expert evidence 104 - loss of legal professional privilege

In my previous post on the topic of expert evidence, 'Expert evidence 103 - Formal report requirements', I noted that when an expert report is relied on and served on the other side, then this usually results in the loss of legal professional privilege (LPP) in the expert report and the instructions to the expert.

Sometimes experts say things in their reports (or drafts of reports) which aren't helpful to your case. In that situation, you may not want to disclose this information. So can you avoid having to disclose certain information from an expert? In this article I discuss LPP in expert reports and when it is lost.

Early neutral evaluations

An early neutral evaluations (an ENE) is a recently introduced form of dispute resolution being used by the Courts in Victoria. It sits somewhere between a mediation and a trial. The Supreme Court of Victoria first piloted the ENE program in 2009 and the Magistrates' Court of Victoria is now piloting the ENE program in 2011.

The Commercial Court of the Supreme Court of Victoria refers matters by consent to ENEs under chapter 11 of the 'Green Book', being practice note no. 1 of 2010 (Chapter 11). ENE is a process where the parties present their cases by way of submission on the facts and the law, and the evaluator (usually a Judge or a Magistrate depending on the Court in which the proceeding is issued) gives a non-binding evaluation of the matter on a confidential and 'without prejudice' basis.

Victorian Bar pro bono awards 2011

I attended the 2011 Victorian Bar pro bono awards in the library of the Supreme Court of Victoria on 17 May 2011. The Honourable Justice Maxwell gave an excellent speech, as did Julian Burnside QC. Burnside gave an entertaining account of the various hate emails he received and politely responded to as part of his ongoing human rights work.

Congratulations to the following senior and junior barristers who received awards for their pro bono work:

• Debbie Mortimer SC (Victorian pro bono trophy).
• Kathryn Bundrock (Daniel Pollak readers award).
• Emrys Nekvapil (Ron Castan QC award for counsel of 1 to 6 years standing).
• Ashley Halphen and Serge Petrovich (Susan Crennan AC QC award for counsel of 7 to 15 years standing).
• Fiona McLeod SC (Ron Merkel QC award for counsel of 15 years + standing and/or silk).
• The team in Rowe & Anor v Electoral Commissioner & Anor, including Ron Merkel QC, Kristen Walker, Fiona Forsyth and Neil McAteer (Public interest/justice innovation award).

Apparently the Victorian Bar contributed around $12 million worth of pro bono work this year, which is an incredible effort.

I also perform pro bono work and I find it very rewarding. I encourage all barristers and solicitors to engage in and support pro bono work, whether on a small, medium or large scale.

Simpson v Rowe [2011] VSC 149 - barrister's lien over settlement proceeds

The matter of Simpson v Rowe [2011] VSC 149 (Simpson) involved a hearing in the Supreme Court of Victoria before Habersberger J. In Simpson, a barrister successfully argued that he had a lien over a client's settlement proceeds. I have included a case summary below.

Arbitrations in the Magistrates' Court of Victoria

When the Magistrates' Court Civil Procedure Rules 2009 (the old Rules) were repealed to make way for a set of rules which were more uniform with the rules of the Supreme Court of Victoria (see my previous posts 'Magistrates' Court General Civil Procedure Rules 2010 - greater uniformity' and 'Magistrates' Court General Civil Procedure Rules 2010 - summary of differences with VSC Rules'), order 21 (Arbitration) of the old Rules was incorporated into order 2 of the Magistrates' Court (Miscellaneous Civil Proceedings) Rules 2010.

The rules concerning arbitrations are unchanged despite the move. Arbitrations are listed for matters where the monetary relief sought is under $10,000 (see s102(1) of the Magistrates' Court Act 1989 (Vic)) and there is a prohibition on exchange of court documents other than a statement of claim, defence and list of documents (see rules 2.04 and 2.05).

Service by email

Recently a lot of my briefs have included documents which are served (by way of ordinary service) by or on my instructors by way of email. The Supreme Court (General Civil Procedure) Rules 2005 (the VSC Rules) do not prescribe email as a recognised mode of ordinary service

Ordinary service under the VSC Rules is effected as follows (see Rule 6.07):

(a) by leaving the document at the proper address of the person to be served on any day on which the Prothonotary's office is open;

(b) by posting the document to the person to be served at the person's proper address;

(c) where provision is made by or under any Act for service of a document on a corporation, by serving the document in accordance with that provision;

(d) where the solicitor for a party has facilities for the reception of documents in an exchange box in a document exchange, by leaving the document in that exchange box or in another exchange box for transmission to that exchange box; or

(e) where the solicitor for a party has facilities for the reception by telephone transmission of a facsimile of a document, by telephone transmission of the document in accordance with paragraph (2.1).

So how is service by email acceptable when it is not prescribed?

Calcorp (Australia) Pty Ltd and Ors v 271 Collins Pty Ltd [2010] VSCA 259 - contractual penalties in terms of settlement

The matter of Calcorp (Australia) Pty Ltd and Ors v 271 Collins Pty Ltd [2010] VSCA 259 (Calcorp) was an appeal from the judgment of O'Neill J in the County Court. The appeal was heard by Nettle, Redlich and Harper JJA of the Court of Appeal. Nettle JA gave the main judgment.

The proceeding arose from the entry of judgment in the County Court of Victoria under terms of settlement which previously compromised that proceeding. The appellant claimed that the entry of judgment under the terms of settlement for the full amount which the respondent claimed in the original proceedings was a penalty. The County Court held that this was not a penalty and the Court of Appeal agreed with the County Court's judgment to this extent.

Magistrates' Court General Civil Procedure Rules 2010 - summary of differences with VSC Rules

In my previous post 'Magistrates' Court General Civil Procedure Rules 2010 - greater uniformity', I discussed the new 2010 MCV Rules which are largely uniform with the VSC Rules. One good practical outcome of having largely uniform Court Rules is that a practitioner may only have to use volume 1 of Williams' Civil Procedure when in the Magistrates' Court (although this will make assessing costs in the Magistrates' Court difficult as the scale of costs is located in volume 3).

There are some differences which appear to arise between the 2010 MCV Rules and the VSC Rules 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 the Magistrates' Court has a more limited jurisdiction than the Supreme Court of Victoria (e.g. no administration of estates, no appeals).

I have set out below a list of orders in the 2010 MCV Rules and the VSC Rules which appear to differ from one another. This is not a list of the exact differences in the wording between the two sets of rules. If you are after that, I suggest you run a comparison between the two documents in Microsoft Word. Where I have put a '/' in the heading, I am referring to the following: (heading of the 2010 MCV Rules / heading of the VSC Rules).