New Supreme Court Rules for Victoria

New Victorian Supreme Court Rules have just been unveiled, ready to come into operation on 23 November 2015. (They are the Supreme Court (General Civil Procedure) Rules 2015 – S.R. No. 103/2015).

We have had the last Rules since 1 January 2006 (with amendments along the way). The ones before that were dated 1996, so it seems that every ten or twenty years the winds of change blow hard enough that a new edition of the Rules.

From my review of the new Rules, compared to the current version of the Rules, very little has changed*.

Rule numbers – have pretty much stayed the same. Which is a relief, as after referring enough times over the years to (say) an Order 29.08 discovery application, an order 21 default judgment application or an Order 13 pleading point it is nice not to have to learn new numbers to match old concepts. And also time and cost effective. There a couple of minor tidying up changes: for example, R13.12(3) and (4) have now become r13.12(2) and (3) respectively, but the wording is the same.

The more recent amendments to the current Rules are all included:

  • RedCrest –no changes of substance have been made to the rules dealing with filing documents electronically via RedCrest in this recent edition of the Rules. Order 28A still deals with electronic filing of documents in RedCrest, with other references scattered through the Rules where relevant to particular types of documents.
  • Appeals and applications to the Court of Appeal: the new process introduced last year and set out in Order 64 appears unchanged.
  • Summary judgment – again the changes made recently remain in the new Rules. (Those who have not reviewed Order 22 recently should familiarise themselves with the new wording brought in as a result of S61 of the Civil Procedure Act 2010, including the summary judgment procedure now available to defendants, and against third parties joined to proceedings).
  • Certification requirements for proceedings (introduced by the Civil Procedure Act 2010) remain the same: (r4.09)

Minor changes

  • Service of documents (where personal service is not required) is still dealt with in Rule 6.07 and expressly includes mention of service by solicitors on each other by leaving documents in “an exchange box in a document exchange” and by “telephone transmission of a facsimile of a document”, but not by email. However, helpfully (given the amount of emailing now going on), there is now a Note added after Rule 6.07(1) which states:

 The Electronic Transactions (Victoria) Act 2000 applies to enable a document to be served electronically, including facsimile transmission and email, in accordance with that Act.” 

This will no doubt assist those lawyers who have not otherwise familiarised themselves with the Electronic Transactions Act, giving them comfort in serving Supreme Court documents by email.

  • There is now a definition of “sheriff” (s 1. 13).
  • A “solicitor is no longer defined (s 1.13). Previously the Rules had defined solicitors as meaning “an Australian lawyer as defined in the Legal Profession Act 2004, other than a barrister as defined in that Act, and includes an incorporated legal practice as defined in that Act”.  Presumably that definition was considered unnecessary.
  • Applications to use audio visual link or audio links – Order 41A is unchanged but has a new heading. It is now called “Application to use audio visual link or audio link” rather than “Application under Section 42(E) of the Evidence (Miscellaneous Provisions) Act 1958”, which may make it easier for practitioners to locate the relevant provisions.

*Disclaimer: I have not done a word by word analysis of changes to the Rules. I have not reviewed the Forms which follow the Rules for changes. The points above are those which I have noted, and may help people wanting a quick summary of relevant changes.

There is never any substitute for actually reading relevant legislation – and the same of course goes for those using the Rules of the Supreme Court (both old and new).

Why I’m a Lawyer

Recently on twitter a topic has been circulating with the hashtag #whyimalawyer.* For those unfamiliar with hashtags (and indeed twitter) the point of such a hashtag is that people looking for what tweets are being said by all different people about particular topics can find them by a search.

There have been many tweets about it by a variety of lawyers in the last few days.  Repeated word for word below these include:

  • Because I like working long hours and getting panicked phone calls at the last minute
  • Because why wouldn’t you want to be one (people listen to what you say), plus it was the vibe.
  • Because I find phrases like ‘incorporeal’ hereditament amusing
  • Because words all day
  • Because DRAMA (aka fun)
  • Because I like to argue about the correct definition of a word or meaning of a sentence
  • I love wearing a wig
  • Because sometimes people can’t resolve conflicts on their own
  • Because finishing a good cross examination feels wonderful
  • Because CENTRE OF ATTENTION
  • Because I wasn’t allowed to do medicine for work experience, and instead read Justinian and had lobster lunches for a week
  • Because you can’t really make money from history
  • knowing sharks won’t attack you in the ocean due to professional courtesy
  • I became a lawyer by accident.  I choose to stay in the hope that I can help families through their toughest times
  • Because I like wearing suits and pulling a trolley full of papers, folders and books
  • Because I love reasoning and argument.  I am a reasoner myself, and hence, law is the perfect match for me.
  • There was a cohort whom would answer “LA Law” to#WhyImALawyer but they were shallow.  And they went into merchant banking
  • Because I love being at the centre of policy making – that feeling when you see a provision you influenced come into existence! 🙂
  • Being a lawyer challenges me, has opened many doors & given me many different opportunities
  • Because I got the marks to study law and I liked debating at school and archeology was hot and dusty
  • because at the age of 10 I thought it would be cool. As I got older, it became about ensuring change in the world
  • I get paid to say “Objection Your Honour”
  • Because a youth worker mocked me in HS when I said my dream was to be a QC…there’s that…
  • Because I love all stationery, particularly fountain pens, highlighters, post-it notes and flags
  • Because when things go pear shaped clients go “ohshit better call isobelle” & because I get to say “don’t panic” a lot
  • I like to explain complicated legal terms using words my clients can explain
  • And Rumpole, and Kylie Tennant’s biography of Evatt, and David Marr’s Barwick
  • Because a small laugh from a judge to a perfectly timed witticism is golden
  • The anxiety you get at 4.55 when a client walks in and tells you they have a hearing at 9.30 tomorrow morning
  • Why has no-one mentioned Perry Mason and his amazing ability to get people to confess
  • Because carrying around large files and books is a great upper body workout
  • In honesty – words, arguing & enforcing rights & speaking truth to power.  And Atticus Finch, of course.
  • Because I like working long hours and getting panicked phone calls at the last minute
  • I love being at social functions and betting on how long it takes for someone to ask “can I ask you a quick question”
  • I’m waiting for someone to say its because they read a lot of John Grisham novels
  • I want to make a difference.  Esp for victims of #domestic violence
  • Because of Welcher & Welcher**, the most realistic TV depiction of small practice I’ve ever seen.

 

 

My own reasons for Why I’m a Lawyer? Co-incidentally I was recently interviewed and asked that very question – and a few more – by New Lawyer Language.  So my own more extended answer to #WhyImALawyer is to be found at their blog: http://newlawyerlanguage.com/2014/05/16/samantha-marks-qc/

 

* After writing this blog, I found out that the #WhyImALawyer hashtag arose as a result of a NSW Young Lawyers Law Week Twitter campaign in May 2014. This initiative was coordinated by NSW Young Lawyers Executive Councillor, David Porter. The NSW Young Lawyers Debrief newsletter included a brief article on this campaign, which can be viewed at: http://ecomms.lawsociety.com.au/rv/ff00182a2e0415d2901d75b6184abf7dadddb8e4.

If you would like to see who posted all the tweets mentioned above, just go into twitter on the internet and search #WhyImALawyer.

 

**I was delighted to see someone mentioned Welcher & Welcher.  This sitcom with Shaun Micallef is the funniest show about lawyers I have ever seen.  Mind you, almost anything with Shaun is funny…

 

 

 

 

Settlement without Penalty

Every day thousands of disputes are settled by agreement. Written Terms of Settlement are entered into by those who want to be sure they have a clear enforceable agreement in relation to the relevant issues.  Often the deal done is that one party to the Terms  of Settlement (A) will pay the other (B) a sum of money.  In order to encourage payment on time there is another provision that if A doesn’t pay that sum, then A needs to pay more.   In legal circles, it is known as the default provision – what is agreed to happen if A defaults in making the promised settlement payment.  Normally the default provision includes agreement to judgment being entered by consent for the larger amount if the lesser amount is not paid on time.

The way the default provision is drafted in the context of the Terms of Settlement makes all the difference to whether it is enforceable or not.

Any clause in a contract which includes a financial penalty for not making a payment in time which is held by a court not to be a “genuine pre-estimate” of the loss suffered by the payee because the payment does not make the payment, is void as a penalty.  It cannot be enforced.  So, for example, if A has agreed to pay B $100 for a box of items, and agrees to pay $200 if the payment is a day late, and that extra $100 payment is not what A and B genuinely think represents the loss to B of having to wait an extra day, then that agreement about the $200 payment will be unenforceable.

However, if A really owes B $200 but B agrees to accept $100 if it is paid by a certain day (and only if it is paid by then) it is not void as a penalty.  There is the same effect of encouraging A to pay the $100 on time or pay $200 if late – but the crucial difference is that in this scenario B has agreed to accept less than is in fact owing to him, only on condition of payment by a certain date.

One way to avoiding the default provision being void as a penalty in if A does not pay up on time is to ensure the Terms of Settlement include the concession by A that A owes B the larger amount ($200, in this example).  This should be set out upfront as part of what is agreed.  Another clause then needs to set out that B will accept payment of a lesser amount (in this example, $100) by a certain day, but that if A does not pay by then, B can obtain judgment for the $200.

There needs to be acknowledgement, either express or implicit, that A owes B the larger amount at the time of the Terms of Settlement.

See the recent Victorian Supreme Court case of Legal Practice Management (Vic)(In Liq) v Simms Corp Hotels & Leisure Pty. Ltd. [2013] VSC 734 for a helpful discussion of relevant cases on this issue, starting with the well known High Court decision of  O’Dea v Allstates Leasing Systems (W.A.) Pty Ltd [1983] HCA 3; (1983) 152 CLR 359.

 

Keeping It Simple. The KISS* principle in drafting.

A young law student emailed me after a recent talk I gave about principles of good drafting. (I know, not the most exciting topic, but as I have mentioned in an earlier blog, an important one for lawyers and anyone else wanting to get a clear message across).

She wrote: “I found it to be very useful, especially the ‘keeping it simple’ point. I am a law student and have been constantly battling with those long, single-sentence-per-paragraph type judgments. I have to confess that I have been imitating that writing style to a certain extent because nobody at the law school teaches students how to
 do legal writing.”

That took me back in time to my first couple of years in law school when I too struggled to come to terms with what to make of this new world of legal writing, and tried to learn how to write in this new language of ‘legalese’. Finding out what actually was relevant in lengthy judgements or submissions sometimes took some doing. The same thing can occur reading some letters, affidavits and pleadings. What is the real point being made by the author?

The more simple the document you draft, the less the scope for confusion. Even difficult and complex factual issues can be drafted simply, although it will take time to put those complexities clearly. The principles of plain English drafting come into play.

One of the best books I have found on this subject is James C Raymond’s ‘Writing for the Court’ (Carswell, Canada 2010). [1] It gives some excellent examples of matters to take into account in drafting. Although it is written in the context of drafting submissions and judgments most of what it says is equally applicable to drafting contracts, letters and emails.

As Raymond says:

Think about how you would explain what you are asking the clients to agree to in common language and as much as possible reduce it to that. When you go home you do not say ‘pass the salt please, and the pepper therewith.’ You do not write to your dearest spouse ‘hereinafter called honey lips.’[2]

 

Raymond gives an example of an exchange he had with a judge who he was assisting in judgment writing.

‘I once had the following exchange with a gracious judge who allowed me to review his work in a tutorial session.

‘I had trouble figuring out what’s going on in this case until I got to page 15,’ I said. ‘This is where you get around to mentioning the issues.’

‘Yes, professor I can see that.’

‘And now that I know what the issues are, it seems to me that probably twelve of the first fifteen pages could be omitted, since they have nothing to with any of the issues.’

‘Yes professor, I agree.’

‘Just out of curiosity, why did you wait until page 15 to enunciate the issues?’

‘Well professor, to tell the truth I didn’t know what the issues were until I got to page 15.’

It was an instructive admission. Writing is often a means of discovering what we think. It is not unusual for judges and lawyers to discover the case as they write it.

 

If what you have written has become more complex as you are still working out what you want to say, then go back afterwards and make it as simple as possible. Use that red pen on your writing – or the delete function on your computer – and get your point across as simply, and persuasively, as possible.

Simple.

 

* KISS – According to that most prominent of authorities, Wikipedia, KISS is an acronym for “Keep it simple, stupid” as a design principle noted by the U.S. Navy in 1960. The KISS principle states that most systems work best if they are kept simple rather than made complicated; therefore simplicity should be a key goal in design and unnecessary complexity should be avoided.

 

[1] Available via Thomson Reuter Australia.

[2] Raymond, Writing for the Court, page 4.

 

Super, Binding Death Nominations and getting your ducks in a row

I have just received a letter from my Superfund saying that my Binding Death Benefit Nomination is about to expire. Glad that I am that it is not a warning that I too am about to expire, I had not appreciated that the form I filled in some years ago was only effective for three years.  I had to fill in and post a new form notifying my super provider of my nominations to ensure my nominations are “updated” in accordance with my instructions.

For those who haven’t yet had to think about this (and no-one much likes to think about dying or what happens to what we own afterwards, in my experience) a Binding Death Nomination is a signed form by which you (the contributor to your super fund) tells the trustee who is to receive the benefit of it.  And the trustee is bound by your nomination.  Instead of that, you can have a Non Binding Death Nomination, which as the name so eloquently describes, lets you say who you would like to have your money – but doesn’t bind the trustee of your fund.  The trustee can just consider your preference.

Why do I write a blog about this? Well, recently a dear friend died at a young age of cancer. Like so many, she had not wanted to confront the reality of what was happening and had not put into place the legal measures to protect her sister, who she wanted to be her next of kin. Wanting to do anything I could to help, when she finally asked me to help get her affairs in order, I ran around in the couple of days before she died organising for a will to be prepared on her behalf and executed by her in her hospital bed. I also arranged for her to sign a Binding Death Benefit Nomination to ensure that her sister, the next of kin who she wanted to be protected when she was gone, would receive the benefits from her super. Had this not been done, it would have been up to the trustee of the super fund to decide where my friend’s super benefits would go. Whilst they might have been guided and assisted in some way by looking at her Will and where she had left things, or by seeing her Non Binding Death Nomination, they would have not have been bound.  I was told over the phone that it could take a couple of years for a decision to be made by the trustee where there was no Binding Death Benefit Nomination. In fact, it got worse, as the Binding Death Benefit Nomination needed to actually be received by the super fund before the death of the member (not just posted before her death) so a cousin of my friend drove into the city at that incredibly difficult and emotional time in order to lodge the Binding Death Benefit Nomination and put my friend’s mind at ease. All followed as sadly anticipated but at least my friend was able to leave her sister well looked after and remove that concern.

In another case I have been involved in, a husband who knew he was dying thought he had left his home and assets to the beautiful young wife and daughter he was leaving behind.  He signed a Will to that effect.  However, when he died it transpired that most of his assets were in his super fund.  As  he had previously signed a binding death nomination leaving all to his mother  (before he met his wife), his widow and child missed out.  His incorrect assumption that his Will would be effective to determine what happened to his super is one that I have since become aware others share.

It got me thinking about how many people do not realise how much power they are leaving in the hands of the trustee of their super funds if they do not fill out a Binding Death Benefit Nomination form and make that decision themselves.   Here then is a call to arms: if you have money in superannuation check today to see if you have signed a Binding Death Benefit Nomination form. If you haven’t, do it and post it.  And if you signed one a while ago check to see if it might be about to expire.

Get those ducks in a row today!

All the World’s a Stage…

I have just had the great pleasure of being in my first play in 25 years.  Way back before life as a barrister  took over many of my waking moments, I used to love acting.  But who had time when litigation can be so all consuming – and if there is one thing life at the Bar does not include, it is regular hours.   So drama has taken a back seat (save for that provided by the ever changing and interesting parade of life I see in my practice – and family!).

One day in July I came back from Court to find an email advising that a play was going to be put on with a cast of barristers, just a few months hence, and calling for auditions.  Rehearsals were on Sundays, and the play would be performed in the legal precinct, out of Court hours.  It was do-able. On the spur of the moment, I replied.  Which led to an audition.  And which, to my delight, led to a part.

Two weeks ago, I was one of a cast of Victorian barristers performing the roles of the 12 jurors and one tipstaff in the classic Reginald Rose play 12 Angry Men.  It was the first production put on in the Supreme Court of Victoria and it was part of the Melbourne Fringe Festival.

 As the cast grappled with learning lines and work-shopping the best way to perform this play which has all the jurors on stage for the whole 90 minute play (the audience is privy to all the jurors’ deliberations as they decide if the man charged of murder is in fact guilty beyond reasonable doubt), we not only had a lot of fun but also got to know each other in a quite different way then would have been possible through our ‘normal’ legal lives.  Before I started the play, I knew a few of the cast and production crew between a little and a lot – or not at all.  Of those I knew, at one extreme, I am married to one cast member. At the other, one of the junior commercial barristers had been in a mediation I was mediator of; another had been a reader (baby barrister) on my floor many years ago. Many I had never met before, including recent members of the Bar, criminal barristers, and the judges’ associates and junior solicitors who directed or were in the production team.   Close friendships have been formed and some mentoring relationships developed. I for one have a new appreciation of the diversity and strength of the Victorian Bar – and of some of the very talented, able junior lawyers getting started in our profession.  

Yes, it was a busy time fitting in rehearsals and performances with work and normal life.  But it was also stimulating, invigorating and very enjoyable.  It was a great reminder of the need to keep other joys and passions going alongside our busy practices.  We then go back to those practices and the people we work with and help, with fresh energy and insight.

The group of lawyers who have set up BottledSnail Productions have done so with the intent of reducing some of the depression and anxiety that working in the legal profession can engender, by promoting drama and musical outlets for lawyers (and it supports the Tristan Jepson foundation which works to counteract depression in the profession).  It is a wonderful idea.  I encourage anyone reading this who themselves has a budding inner actor or musician eager for an outlet to get involved.  Law Revue auditions are coming up; there is an Orchestra and Choir being formed; I hear there is a Battle of the Bands to come.  All great ways to get to know other lawyers – outside our adversarial system. 

Reprise season in 2 weeks

Just in case anyone reading this now wishes they had seen the play – tickets have just been released for an extended season.  12 Angry Men will be on again, this time at the Council Chambers, Melbourne Town Hall on Tuesday 22, Wednesday 23, Thursday 24 and Saturday 26 October 2013 (at 8 pm).

The cast is –

  • Samantha Marks SCForewoman
  • Andrew Buckland – juror 2
  • Kylie Weston-Scheuber – juror 3
  • Angela O’Brien – juror 4
  • David Kim – juror 5
  • Danny Cole – juror 6
  • Sam Tovey – juror 7
  • Simon Marks SC – juror 8
  • The Hon James Guest – juror 9
  • Ashley Halphen – juror 10
  • Loula Athanasopoulos – juror 11
  • Rachel Ellyardjuror 12
  • Samantha Dixon – tipstaff.


Tickets can be purchased online at <http://www.bottledsnail.com> (follow the link from the front page). 


Some comments from the first season:

  • It was my great privilege to attend the opening night, last night.  The performance was phenomenal.  I am extremely proud of you all and feel deeply honoured to have been invited to attend. I was extremely impressed by the quality of the performance.  At times, the tension was so palpable you could cut the air with a knife.

       

  • A great show…I have been raving to my colleagues about it this morning. When you have information on the new dates in the Town Hall can you give me as much advance notice as possible.

 

  • We saw 12 Angry Men tonight.  Absolutely terrific.  I loved the Henry Fonda/Sidney Lumet version and thought it would be pretty big shoes.   It was riveting. 
Immensely satisfying – didn’t need to be held in the courts, would have been just as terrific anywhere – for me, just a location bonus.



What does ‘attempt to negotiate’ mean? Opening salvos and staking out boundaries

What used to be called ‘without prejudice’ privilege is now covered in Australia by Section 131 of the Evidence Act 2008.  It is designed to ensure that people in dispute can try to negotiate settlements without fearing that evidence what they have said or written will be used against them in Court if the matter continues without settling.  Questions sometimes arise as to whether or not specific communications were part of an attempt to negotiate settlement or not.  These questions can be the subject of heated argument, as one side may think the particular communication will be a great help to their argument in the proceeding (and will argue it is not privileged), whilst the other is very keen to keep it private (arguing that it is).

A recent NSW decision has helpfully set out some relevant principles to consider.

Section 131(1) of the Evidence Act 2008 states:

Evidence is not to be adduced of –

(a)       a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b)       a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute”.

There are exceptions set out in subsection (2).

In Mordecai v Attorney General of NSW (2013) NSWSC 1307 there was a dispute as to whether a letter written by Mordecai to the other parties in the earlier proceeding (which Mordecai was seeking leave to appeal) was covered by S131 privilege.   Mordecai argued that the letter was covered by the privilege: that he had written it in an endeavor to settle the earlier proceeding.  His opponents argued that it was not an attempt to negotiate settlement and they should now be able to rely on it.

Justice Garling rejected tender of the letter. In a discussion at paragraphs [20-25] of his judgment, His Honour reiterated that it is now ‘beyond argument’ that the mere insertion of, or use of the words ‘without prejudice’ on a document is not, without more, determinative of the issue of whether a communication is ‘in connection with a settlement’: GPI Leisure Corporation (In Liq) v Yuill (1997) 42 NSWLR 225 at 226G per Young, J.  However, it will be some evidence of an intention that the communication is made for the purpose of attempting to negotiate a settlement of a dispute: Barrett Property Group Pty. Ltd. v Dennis Family Homes Pty. Ltd. [2011] FCA 276.

His Honour went on to consider what ‘attempt to negotiate a settlement’ means, and said it was appropriate to keep in mind what  Bromberg J said in Barrett Property at [33] to [34]: ‘It does not require an attempt to negotiate a compromise in which some middle ground is found’.

Quoting Spigelman CJ in Bhagat v Global Custodians Ltd [2002] NSWCA 160 at [29], ‘a demand for surrender may constitute an attempt to negotiate a settlement, even though no compromise is offered.’  There does not have to be an offer capable of acceptance: it is sufficient that the communication can be described as an ‘opening shot’ in negotiations: GPI Leisure v Yuill. Applying these principles to the letter in question, His Honour found that it was privileged under s131, amounting to a genuine attempt to negotiate a settlement of the proceedings.  This was not altered by the fact that it referred to and made a demand about extraneous subject matter (not part of the proceedings in question), nor that it did not clearly specify what settlement was proposed.  He pointed out that ‘staking out’ what boundaries a party wants to negotiate within is common in negotiations.  He also held that ‘the fact that an offer includes one term, which may be impossible to accept, does not mean that the entire offer is not a genuine attempt to resolve the position’ [42].  An opening letter in settlement negotiations or a ‘shot across the bows’ may still be a genuine attempt to negotiate a settlement [45].