Posts in Civil Procedure
Counting the (legal) costs of discontinuing a proceeding

Perhaps just as significant as the decision to commence a proceeding is the decision to discontinue it. While the discontinuing party may be liable to pay the other side’s costs, the matter is at the court’s discretion. The recent decision Supreme Court decision in Course v Hannan & Ors [2018] VSC 401 demonstrates some of the factors a court can consider when determining the question of costs of a discontinued proceeding.

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Got a hunch? Navigating the rules of preliminary discovery

The rules of most Victorian courts permit a party, in certain circumstances, to obtain discovery of material prior to commencing proceedings. This is especially vital in assisting a party to ascertain who, or by what cause of action, it can sue. Like many rule-based tests, there can be some confusion about the requirements, as well as the discretionary factors, for obtaining preliminary discovery. The Supreme Court in a recent appeal decision in Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391 has shed some light.

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Take care not to waive privilege when pleading your case

Legal professional privilege provides vital protection to communications passing between lawyer and client. It is no surprise, then, that the issue of waiver of privilege is often hotly contested. In a recent decision, the Victorian Court of Appeal considered whether the way a party had pleaded its case had resulted in an implied waiver of privilege. The Court’s decision provides a useful analysis of the law relating to waiver and the potential circumstances in which a pleading can give things away.

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Seeking an injunction? The court might award damages instead

A person may apply to a court for an injunction in order to prevent threatened or actual and ongoing infringement of that person’s legal rights. When hearing an application for an injunction, most courts have jurisdiction to award damages instead of, or together with, an injunction. The Queensland Supreme Court has recently provided some guidance regarding the circumstances in which a court might do so.

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What is a ‘retail tenancy dispute’? Navigating the statutory regime

Disputes regarding retail tenancies are typically the exclusive province of the Victorian Civil and Administrative Tribunal. Nonetheless, the Supreme Court of Victoria in the recent case of AMJE Pty Ltd v Mobil Oil Australia Pty Ltd held that the Court possesses jurisdiction in circumstances where, turning on a point of statutory interpretation, the plaintiff had made a claim that was not in fact a ‘retail tenancy dispute’ in the strict sense.

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Applying to remove a caveat?

The recent Victorian Supreme Court decision in Yuksels Nominees Pty Ltd v Nguyen & Anor rovides some useful guidance about the removal of caveats under the Transfer of Land Act 1958. The case also considers the relevance of other court proceedings instigated by the caveator and whether an application to remove the caveat might in such a situation be 'vexatious'.

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