What does it mean for evidence to be ‘not admissible’?

In the case of Sandpiper Developments Pty Ltd v Main Beach Developments Qld Pty Ltd [2024] VSC 469, the plaintiff decided not to proceed with its claims. When the question of costs arose, the defendants sought a non-party costs order. The Court considered, and summarised, a number of principles relevant to that issue.

In civil cases, facts must be proven on the balance of probabilities to the court’s actual persuasion. How, then, should a court assess whether a witness is telling the truth? In this blog post, I describe some of the factors a court might consider.

The defendants in a proceeding made a Calderbank offer to settle four days prior to trial — including a weekend. The plaintiffs rejected their offer, went on to lose at trial, and were ordered to pay indemnity costs as a consequence of the offer’s rejection. The decision in SSABR Pty Ltd v AMA Group Ltd (No 2) [2024] NSWSC 24 explains why.

Where an expert has used notes as the basis for expressing a verbal opinion to briefing solicitors, to the extent they are not necessarily used in the preparation of an expert report can those notes be privileged?

In ruling on the admissibility of expert evidence in a proceeding involving allegations of directors’ breach of fiduciary duties, the Supreme Court has addressed some key issues relating to expert witnesses. The Court’s decision in Finance & Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling) [2019] VSC 665 serves as a reminder of the importance of independence and candour in an expert. The ruling also reiterates the need for transparency in an expert report so far as assumptions and material relied upon are concerned. It is a useful decision to bear in mind whether one seeks to admit or to exclude expert evidence in a proceeding.

A person who succeeds in recovering a ‘debt or sum certain’ in litigation is entitled to interest on that amount unless there is good cause to the contrary. But what qualifies as a ‘debt or sum certain’? If you sue for an amount in the form of compensation and are paid it before judgment is entered, have you ‘recovered’ that amount? The Victorian Court of Appeal has recently addressed these concepts in the case of Carbone v Melton City Council [2020] VSCA 117.

Practitioners may be aware of the ‘rule in Jones v Dunkel’ and the way this can impact the decision to call witnesses at trial. Practitioners might not be aware, however, of the intricacies of the rule and the way it ought be applied. A recent decision of the Supreme Court provides a useful caption of the rule and its relevant principles.

Among the more common forms of relief sought in civil litigation are claims for payment of debt and claims for damages. While these are distinct remedies with their own elements, they are at times liable to be conflated or confused. The decision of the Victorian Court of Appeal in Yang v Finder Earth Pty Ltd [2019] VSCA 22 illustrates how both the pleading of a cause of action and the framing of the relief sought can affect a party’s procedural rights. The decision serves as a reminder of the importance of clear and thoughtful pleading when formulating claims.

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.

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.

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.