Kenny v Gippsreal Ltd

Case [2015] VSC 284


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2015 01489

CAROLINE MAJELLA KENNY Plaintiff
v  
GIPPSREAL LTD (ACN 076 779 630) Defendant

S ECI 2015 000120

IAN SYMONDS & ASSOCIATES Plaintiff
v  
GIPPSREAL LTD (ACN 076 779 630) Defendant

S CI 2012 02626

GIPPSREAL LTD (ACN 076 779 630) Plaintiff
v  
ACTION CYCLES and ORS Defendant

S CI 2011 04416

ACTION CYCLES (Receivers and managers appointed) Plaintiff
v  
DAVID ANTHONY ROSS (in his capacity as receiver and manager of Action Cycles Pty Ltd (receivers and managers appointed) Defendant

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JUDGE:

VICKERY J

WHERE HELD:

Melbourne

DATE OF HEARING:

26 May 2015

DATE OF JUDGMENT:

18 June 2015

CASE MAY BE CITED AS:

Kenny & Anor v Gippsreal Ltd

MEDIUM NEUTRAL CITATION:

[2015] VSC 284

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PRACTICE AND PROCEDURE – Applications for costs and compensation against lawyers for alleged breaches of overarching obligations – Civil Procedure Act 2010 (the ‘Act’) ss 28, 29, 30 and 31 – Meaning of ‘finalisation’ s 30(2) of the Act – Non-compliance with time bar in s 30(2) of the Act – Section 29 applications under the Act for costs and compensation against lawyers set aside – Subpoenas addressed to lawyers – Whether served a legitimate forensic purpose – Validity of subpoenas considered – Subpoenas upheld.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff (Barrister) P B Murdoch QC with
D A Klempfner of counsel
DLA Piper Australia
For the Plaintiff (Solicitors) C Jones, solicitor Colin Biggers & Paisley
For the Defendant (Gippsreal) J L Evans of counsel Oakleys Legal

HIS HONOUR:

  1. In this part of the proceedings, two issues arise for determination:

1.First, whether a party to legal proceedings before this Court, Gippsreal Ltd (‘Gippsreal’), by reason of the timing of the making of its applications, is entitled to pursue costs and/or compensation pursuant to s 29 of the Civil Procedure Act 2010 (the ‘CPA’) from a barrister and an instructing solicitor in respect of proceedings conducted by them where it is alleged that they have contravened the overarching obligations prescribed by the CPA; and

2.Second, whether subpoenas issued by Gippsreal for the production of documents directed to the barrister and the instructing solicitor, seeking documents in support of its applications for costs and/or compensation, should be permitted to stand or should be set aside.

Background

  1. I accept the following facts and documents relevant to the matters presently before the Court:

1.Between September 2011 and June 2012, The Barrister acted at various times for Darren Gellie, Lorelle Gellie and Action Cycles Pty Ltd (the ‘Action Cycles parties’) in the 2011 Proceeding and the 2012 Proceeding.  Essentially, the proceedings centred upon allegations made by the Action Cycle parties that deeds of settlement which they had entered into with Gippsreal in settlement of other matters were unenforceable and should be set aside. The underlying causes of action in the 2011 Proceeding and the 2012 Proceeding are not relevant for present purposes

2.Between 26 April 2012 and 10 July 2012, the Solicitors acted…

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Kenny v Gippsreal Ltd [2015] VSC 284
Case
[2015] VSC 284
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CaseChat Overview and Summary

Kenny commenced proceedings against Gippsreal Ltd, seeking compensation for alleged breaches of overarching obligations by the respondent’s legal representatives. The matter was heard in the Supreme Court of Victoria. The applicant alleged that the respondent's lawyers had breached their overarching obligations under the Civil Procedure Act 2010 (Vic), and sought costs and compensation against the respondent’s lawyers pursuant to sections 28, 29, 30, and 31 of the Act. The primary legal issue before the court was whether the applicant’s applications for costs and compensation against the respondent’s lawyers were validly brought, given the time constraints imposed by section 30(2) of the Act. The court also had to determine whether the subpoenas issued to the respondent’s lawyers were served for a legitimate forensic purpose.

The court found that the applicant's applications for costs and compensation were not brought within the time bar specified in section 30(2) of the Act, and were therefore invalid. The court noted that the meaning of 'finalisation' under the Act was a matter of legislative interpretation, and that the time bar in section 30(2) was mandatory and could not be extended by the court. The court also found that the subpoenas issued to the respondent’s lawyers were served for a legitimate forensic purpose, and were therefore valid. The court held that the subpoenas were not a punishment for the lawyers’ alleged breaches, but were instead a necessary tool for the court to obtain information and evidence relevant to the proceedings. The court rejected the respondent’s argument that the subpoenas were a collateral attack on their lawyers, and held that the subpoenas were a legitimate means of enforcing the court’s jurisdiction.

The Supreme Court set aside the applicant’s applications for costs and compensation against the respondent’s lawyers, and upheld the subpoenas issued to the respondent’s lawyers. The court did not make any orders for costs against the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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