The Commercial Bar Association of Victoria Inc. A0120851O
Abstract: A December 2016 decision of the Supreme Court of Victoria and a January 2017 practice note on the use of technology in the Court have shown the Court’s acceptance of technology assisted review as an appropriate method of discovery in litigation involving a large amount of electronically stored information.
In this recent decision, the Court of Appeal held that a mediation-based dispute resolution clause in a construction contract did not oust the jurisdiction of an adjudicator under Victorian security of payment legislation, and that an adjudicator is not bound by a valuation certified by a superintendent under a contract.
The Supreme Court of Victoria was required to consider the application of the Domestic Building Contracts Act 1995 (Vic) to multi-apartment developments. McDonald J held that, subject to the nature of the works falling within the definition of “domestic building work”, the Act applies to multi-apartment developments and to developers of such developments.
A modified AS4300-1995 contract defined practical completion to include an exhaustive list of both significant and trivial items of work. The builder argued that because the failure to attend to trivial items of work could trigger the liquidated damages clause, the clause was penal. The Queensland Supreme Court disagreed.
The Vexatious Proceedings Act 2014 (Vic) (the “Act”) commenced on 31 October 2014, and repeals the previous single-tier system for dealing with vexatious litigants in (the then) s21 Supreme Court Act 1986 (Vic).
The Courts Legislation (Miscellaneous Amendments) Act 2014 implemented changes to the Supreme Court Act 1986 (Vic) that include a requirement for leave to appeal for all civil appeals, with limited exceptions, and there is no entitlement to an oral hearing for leave to appeal. The changes commenced on 10 November 2014, and the Supreme Court (General Civil Procedure) Rules 2005 were amended also.
The Magistrates’ Court General Civil Procedure (Offers of Compromise Amendments) Rules 2014 bring the rules on offers of compromise in the Magistrates’ Court of Victoria (“MCV”) largely into alignment with the Supreme Court of Victoria (“VSC”) and County Court of Victoria (“CCV”) rules on offers of compromise. This amendment commenced on 1 August 2014. The VSC and CCV rules were amended on 1 September 2013 and 7 October 2013 respectively.
The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (Vic) was given Royal Asset on 8 April 2014, and amends the Civil Procedure Act 2010 (Vic) (the “CPA”). The amendments mainly concern document management in the discovery process.
In Hooper v Metricon Homes, a house was built on a poorly built slab and foundation, causing the house to exhibit serious movement. The Tribunal awarded damages for demolition and rebuilding of the house.
Monitor’s Report – The Australian Sports Anti-Doping Authority (‘ASADA’) investigation into the AFL and NRL appears to be continuing, despite the two codes almost commencing their next season since the investigation began. It is unclear what the outcome of this will be, and when an outcome will be achieved. Former Federal Court Judge Garry Downes has been appointed to review the ASADA investigation, including to determine whether charges could be laid in respect of alleged infractions.
A claimant in an expert determination challenged an interlocutory decision of the expert to refuse the claimant leave to amend its claim. After discussing the nature and purpose of expert determination, and construing the contract between the parties and the expert, the Court held that the expert did not err.
This is the second case note of two cases in which subsequent owners of a home have brought proceedings in respect of defects which are said to have arisen after purchase of the home. In determining whether the owners had suffered loss, the Tribunal considered whether the owners had constructive knowledge of ‘reasonably observable’ defects, also introducing the concept of the ‘untrained eye’.
This is the first case note of two cases in which owners of a home have brought proceedings in respect of defects which are said to have arisen after purchase of the home. The Tribunal considered the issue of whether knowledge by the purchasers of the defects prior to purchase affected their claims.