Author Archives: Paul Duggan

About Paul Duggan

commercial litigation barrister and mediator

Clayton Utz and the lingering smell of smoke

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Are you a commercial litigator with an interest in client confidentiality and conflicts of interest? Or in schadenfreude?

Then you will probably appreciate Justice Elizabeth Hollingworth’s decision last month in Dale v Clayton Utz (No 2) [2013] VSC 54

A quick refresher before the summary.

Allan Myers QC and Clayton Utz both have singular reputations among Australian lawyers.

Myers is a top shelf commercial silk and philanthropist. His fame, prestige and profile are surely matched by few other practising lawyers in the nation. Apart from that, in his spare time he has dabbled in investments sufficiently to acquire, among other things, a Polish brewery, vast tracts of outback Australia and an entry in BRW’s Richest 200 list.

Clayton Utz’s reputation is more enigmatic. It is a mega firm employing hundreds of no-doubt talented and principled lawyers. But in the public mind it is arguably still best known for its murky role defending Big Tobacco against a claim by a dying ex-smoker, Mrs Rolah McCabe in 2002.

Mrs McCabe won at first instance (see decision here) after the cigarette company’s defence was struck out. The trial judge concluded, among other things, that through its “document retention policy”, the process of discovery in the case had been subverted by the defendant and its solicitors (Clayton Utz) with the deliberate intention of denying a fair trial to the plaintiff.

That decision was reversed by the Court of Appeal here but Clayton’s Utz’s judicial vindication was undermined by the PR shellacking The Age (and other media) gave Clutz and its client in stories like this and this.

How did the The Age get its material?

We now know that some of The Age’s information was leaked to it in 2006 by one time Clayton Utz litigation partner (and also 2004 Law Institute of Victoria president) Chris Dale.

For reasons which the Supreme Court might yet find were or were not related to the McCabe case, Clayton Utz had expelled Dale from its partnership a year earlier in October 2005.

Almost six years later, in September 2011, Dale sued Clayton Utz for breach of the partnership agreement.

Which brings us back to the Victorian Supreme Court’s recent decision.

Clutz filed its defence against Dale in January 2012. That defence was signed by Allan Myers QC.

Dale promptly objected to Myers’ involvement. He said that Myers had advised him in relation to his dealings with the Clutz partnership during 2004 and 2005 and accordingly Myers should not act against him now.

Clutz held its ground so Dale sought an injunction to prevent Myers acting further in the case.

Last month Dale won that argument and Myers exited the proceeding. (The wider dispute between Dale and the partnership remains to be determined.)

Justice Hollingworth’s 40 page judgment is a good read. There is something in it for you whether you are in the mood for a John Grisham-style legal who-dunnit or some pointers on how not to draw affidavits on this type of issue, lawyers’ obligations to parties they have formerly (and possibly informally as well) advised, concepts of ‘contractual’ and ‘consensual’ retainers and much else besides.

But the most confronting topic for mine is the treatment of obligations towards former clients (including people who might never have been ‘clients’ in a formal sense).

In short, Dale swore on affidavit and in cross-examination that as his relationship with the Clutz partnership frayed in 2004 and 2005 he sought and obtained Myers’ oral advice.

Myers denied this on affidavit and was not cross-examined.

Dale’s version (at least as to a single conference of about one hour’s duration in 2004) was preferred by Hollingworth J thus –

33     In so far as Mr Myers states … that he “was not retained” by Mr Dale, I read that as no more than a statement of his personal belief that he was not retained. Mr Myers cannot give evidence as to whether he was in fact retained. Whether or not there was a retainer is a legal matter for the court to determine, from the objective facts, and not from the subjective beliefs of the lawyer or the party alleging to have retained the lawyer.

….

59     In so far as Mr Myers states … that he was not asked to and did not provide legal advice to Mr Dale, given that he has no memory of this conversation at all, I read that as no more than a statement of his personal belief … that he was not retained to provide legal advice.

 ….

135   I accept that Mr Myers did not believe he was being professionally retained. But Mr Myers did not say to Mr Dale that he was seeing him other than in his capacity as senior counsel, even though the discussion lasted for about an hour and went into some detail about Mr Dale’s current predicament. Someone in Mr Myers’ position could easily have taken steps to make it clear that he was not acting in a professional capacity.

….

Conclusion

176   I propose to grant an injunction to restrain Clayton Utz from continuing to engage Mr Myers in this proceeding. Such an injunction would be justified by any of the following findings:

(a)     That a professional relationship existed between Mr Dale and Mr Myers in relation to the August 2004 meeting;

(b)     Further and alternatively, that Mr Dale communicated confidential information to Mr Dale [sic.— Myers?] in the August 2004 meeting, and there is a real and sensible possibility of a revival of recollection, about matters which are of critical importance in this proceeding;

(c)      Further and alternatively, because a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that to occur.

The bottom line for Clayton Utz? The firm needs a new silk in for its continuing stoush with Dale.

The bottom line for the rest of us? An hour’s discussion about which you have absolutely no memory or record can be enough nine years later to have you ejected from acting in litigation against the other party to that forgotten discussion.

For the record:

  • Hollingworth J stated (at para 121) “By accepting Mr Dale’s account, I am not in any way suggesting that Mr Myers is not a truthful witness”.
  • In late 2001 or early 2002 I acted for Mrs Rolah McCabe for approximately 48 hours in her case against Clayton Utz’s then-client British and American Tobacco Australia Services Pty Ltd.

Victorian Supreme Court costs – the party/party is over

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No April Fool’s Day jokes please.

Effective 1 April 2013 the Victorian Supreme Court has a new costs regime.

The highlights:

  • The ‘party and party basis’ (by which most Supreme Court cost bills have historically been taxed) is axed.
  • Henceforth, costs orders will generally be taxed on the more generous ‘solicitor and client basis’ (that is “all costs reasonably incurred and of reasonable amount”) although that yardstick is to be renamed the ‘standard basis.’
  • Costs on an indemnity basis remain available.
  • Solicitors’ time on the standard basis will be claimable in 6 minute units at the rate of $36 + GST per unit (ie $360 + GST per hour).
  • Unless otherwise ordered, the maximum daily allowance for counsel is $5000 + GST per day for juniors and $7500 + GST per day for silks.
  • Photocopying (currently allowable at a whopping $2.30 per page) becomes discretionary but is likely to be allowed in the Costs Court at 22 cents per printed side of page.

For a more detailed explanation of the new costs regime see:

What do the changes mean?

It is probably good news for successful litigants. Any standard costs order in their favour should now translate into more coin in their pocket than was formerly likely under the more austere party and party basis.

It is correspondingly bad news for unsuccessful litigants (by which I include others such as winners who fail to beat their opponents’ Calderbank offers or Offers of Compromise).

And it’s likely business as usual for those practitioners of the dark arts of costs consulting.

How Edelsten’s costs application against solis backfired

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Last October I posted about Dr Edelsten’s adventures in the Supreme Court of Victoria against a lady friend in (Mainly) keeping a sugar daddy’s confidences.

A quick reminder. In an entertaining but unflattering judgment Dr Edelsten won an order for $US5000 plus certain limited suppression orders against a Ms da Silva.

Among other things, Beach J found that “most of the evidence given by the defendant was demonstrably false and could not be believed. However, Dr Edelsten was no more an impressive witness than Ms da Silva.”

Now the aftermath (which escaped me among the distractions of the summer holidays).

The week before Christmas Dr Edelsten went back to court and sought his costs of the litigation against the defendant’s solicitors – on an indemnity basis.

Among other things, he relied upon the Civil Procedure Act.

He argued that swathes of the defendant’s case had no proper basis, her solicitors must have known this and therefore they should not have persisted with key aspects of the defendants’ case.

Beach J was not swayed.

“I am satisfied that at all times … the defendant’s solicitors were acting on the instructions of the defendant. Indeed, when the defence was eventually abandoned, it was abandoned in the face of the defendant’s evidence to the contrary.

… Having regard to the instructions the defendant’s solicitors then possessed, I see nothing improper, or in breach of any rule of conduct, or in breach of any overarching obligation or other provision of the Civil Procedure Act, in the drawing, settling and filing of the defendant’s defence. …

It is always possible to say that an issue, upon which it becomes clear that a party will ultimately be unsuccessful, could have been abandoned earlier if greater diligence had been exercised. However, the mere failure to abandon a point at the earliest possible time does not mandate a conclusion that an overarching obligation of the Civil Procedure Act has been breached.

…. In the end, I have come to the conclusion that while a counsel of perfection would have suggested that the concession made on the afternoon of the third day of the trial could (and possibly should) have been made 24 hours earlier, the failure to take this step at that time did not involve the contravention of any of the overarching obligations in the Civil Procedure Act.

And the ordeal was not yet over.  Beach J concluded with an order that Dr Edelsten pay the solicitors’ costs of his failed application on a solicitor /client basis (apparently because the judge considered the application had been sufficiently hopeless to warrant costs on more than the usual party/party basis).

The costs decision is here.

 

Tripping up on the slip rule

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“Since the abolition of capital punishment there is now no mistake by a lawyer in Australia that cannot be effectively reversed.”

Or so I was told long ago after a bad day in the office as an articled clerk.

My supervising partner had in mind the slip rule.

The slip rule is the rule that allows courts to correct minor glitches in their own judgments and orders without the trouble and expense of an appellate court’s intervention.

The slip rule is within courts’ inherent jurisdiction but it is also succinctly expressed in most courts’ own rules — see for example Federal Court rule 39.05 and, in Victoria, Supreme Court rule 36.07; Magistrates’ Court rule 36.08 and VCAT Act s 119.

But the slip rule has its limits.

I was reminded of this over the Christmas break by a Retail Tenancies List decision – Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2012] VCAT 1908.

In late 2011 the tenant-applicant won an order totalling almost $245,000 against its landlord – see Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2011] VCAT 2273. In that case, after a 10-day hearing and a 62-page judgment, VCAT Vice-President Judge Lacava found that the landlord had failed to take reasonable steps to stop or prevent disruption to the tenant’s trading caused by, inter alia, a neighbour’s renovations.

The landlord duly paid up.

Almost a year later the tenant decided to go back to the well. It applied to VCAT under the slip rule for a further order which would have upped the original award by almost $96,000.

The application had three prongs.

Two were swiftly dealt with. Judge Lacava found both to require a total recalculation of damages in circumstances where the errors complained of and their consequences were “not readily identifiable.”

The third limb of the application was starker.

The landlord conceded that a typographical error (yes – a humble typo) in the original reasons had effectively cost the tenant $16,235. But it would not concede the slip rule application.

Quite right too ruled Judge Lacava.

He cited L Shaddock & Associates v City of Parramatta [1983] 151 CLR 590 to the effect that courts have a discretion when dealing with slip rule applications.

In my view, if there was an error capable of being corrected under s. 119 [of the VCAT Act dealing with slip rule applications], it ought to have been identified by the applicant and its accountants by the end of February 2012 at the latest and an application then made. That was not done. In my judgment, the delay in bringing this application for correction is unexplained and is too long. It is important that litigation be brought to an end. In this case, the respondent having promptly paid the amount of damages, it would be both inexpedient and inequitable for me to make the orders sought by the applicant in its further application dated 20 September 2012.

For these reasons, the applicant’s further application is dismissed.

The lessons?

Three occur to me:

  • Try to get it right the first time;
  • Don’t hang about when you (or the judge’s typist) muck it up; and
  • Don’t believe everything supervising partners tell their underlings.

(Mainly) keeping a sugar daddy’s confidences

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Geoffrey Edelsten

Geoffrey Edelsten (Photo credit: Wikipedia)

Are confidentiality clauses worth the paper they are written on?
Between parties of good will they are unnecessary. Between parties of ill will their enforcement is usually fraught. The genie secret can escape the confidentiality bottle too easily and, once loose, can seldom be ordered by any court entirely back into that bottle.
Dr Geoffrey Edelsten was reminded of this last week when he scored a dubious victory in Norman South Pty Ltd and Geoffrey Edelsten v da Silva [2012] VSC 477.
Australia’s most famous struck off GP ‘met’ the young, female defendant, Ms da Silva, at www.sugardaddyforme.com . (Go on — have a peek at a very strange world which promotes itself as “a dating site that promises you the man – and the bank account – of your dreams!”) Our star-crossed litigants then met in person, in Florida, one weekend in March this year.
Money subsequently changed hands. On the Edelsten version, that money was a $5000 loan from his company (the first plaintiff) to the defendant. He said the loan was governed by a written agreement which included a wide-reaching confidentiality clause.
Ms da Silva admitted receiving the $5000 but initially told the court it was a gift. Later in the trial she characterised the payment as a loan without any confidentiality obligations attaching to it. She said certain emails in evidence that appeared to contradict her were forgeries.
In a contest between two extremely unimpressive witnesses Edelsten was preferred to Ms da Silva.
What else transpired between the pair? We will probably never know because Ms da Silva is now injuncted from, among other things, persisting with the disclosures she had started making to a Herald Sun reporter.
It was those disclosures which apparently prompted Edelsten to seek a cocktail of orders against da Silva including for repayment of the $5000 loan, damages, injunctions to prevent further disclosures and a non-publication order under s 18(1)(c) of the Supreme Court Act in respect of the entire proceeding.
Edelsten succeeded on the loan claim and the injunctions (because of the confidentiality clause rather than breach of confidence principles) he failed to get damages and he got only a partial non-publication order.
Most successful litigants enjoy public vindication but Edelsten would probably have appreciated private vindication more.
Instead Justice David Beach suppressed “information derived from the proceeding that would disclose or further disclose the substance of any dealings” between the two main players but expressly exempted his 14 page judgment from that order.
Hence the judge’s scathing assessment of the main witnesses’ testimony can be shared with the world. Here (minus the footnotes) are some highlights from a stinging judgment:

1 A little over 23 years ago, Brooking J commenced a judgment with the statement “Titus Oates was the greatest perjurer that ever lived”.  Self-evidently, his Honour was not the trial judge in the present proceeding.
….
9 …. one of the problems with this proceeding was that in respect of a significant number of the emails, each side had different versions of the relevant email. Each side accused the other of fraud. Specifically, each party made accusations that various emails passing between them had been fraudulently altered.
….
15 ….most of the evidence given by the defendant was demonstrably false and could not be believed.
16 However, Dr Edelsten was no more an impressive witness than Ms da Silva. The evidence disclosed that in his dealings with Ms da Silva he lied to her on a number of occasions. Further, much of Dr Edelsten’s evidence was simply unbelievable when one had regard to the whole of the evidence. Specifically, Dr Edelsten’s evidence as to being largely (if not wholly) motivated by altruism or charity in his dealings with the … defendant must be rejected. Additionally, much of Dr Edelsten’s evidence (and particularly the evidence I have referred to in this paragraph) is inherently unlikely when one looks at the written record of the communications passing between him and the defendant.
17 While, in some circumstances, and depending upon the demeanour of the particular witness (or other relevant matters), inherently unlikely evidence might nevertheless be accepted, nothing about Dr Edelsten’s appearance in the witness box or any of the evidence in this case led me to conclude that I should accept the evidence given by him (and to which I have referred) in the face of the more likely true position as disclosed in the emails tendered on his behalf. Specifically, the way in which Dr Edelsten gave evidence was unsatisfactory. On a number of occasions, there were inappropriately long pauses before an answer was given to a straightforward question that should have been capable of a ready answer. From time to time, Dr Edelsten appeared to be contemplating which of a selection of answers might prove least embarrassing or least destructive to his case. Further, Dr Edelsten’s willingness to deny seeing the contents of some attachments to a particular email from the defendant did not assist his credibility. Finally, in respect of too many matters in cross-examination, Dr Edelsten was content, all too readily, to say that he could not recall the matter inquired of, before having to, somewhat grudgingly, acknowledge its existence when taken to a specific email.
18 In summary, I found both Dr Edelsten and Ms da Silva to be unsatisfactory witnesses. Both were prepared to mislead me in respect of any matter that they thought they could get away with. Each was prepared to be truthful only if it did not otherwise embarrass them or harm their case. The one piece of evidence that could confidently be accepted from each of them is when each of them said that, in respect of certain matters, the other was being untruthful. That said, there was the occasional vignette of truth. Further, in fairness to Dr Edelsten and in the context of this case, it might be said that it was at least to his credit that he did not falsify any of the relevant documents.
….
40 In my view, it is necessary, so as not to prejudice the administration of justice, to make a non-publication order prohibiting the publication of any part of this proceeding that would disclose or further disclose the substance of the dealings to date between the second plaintiff and the defendant, including any emails, text messages or any other form of communication passing between them. However, I should say for the sake of completeness that such a non-publication order does not prevent the publication of this judgment.

Robert Hughes – a lawyer’s farewell

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Celebrated art critic and historian Robert Hughes died this week.

None of the many generous obits I have read have mentioned Hughes’s obscure and incidental career as a legal critic.

Let’s fix that.

In 1999 Hughes nearly died in a car accident near Broome, Western Australia. During his painful recuperation he was charged with driving offences arising out of that accident. He initially contested the charges but ultimately pleaded guilty.

In the interim passengers from the other vehicle offered (on the sly of course) to change their evidence in exchange for payment from Hughes. They were duly charged conspiring to pervert the course of justice.

Hughes, the baby brother of ex-federal attorney general “Frosty Tom” Hughes QC, was scathing about the whole episode. Among those he took a swipe at was the barrister who prosecuted him, Indian-born, Western Australian barrister Lloyd Rayney.

Hughes, among other things, allegedly described Rayney as a “curry muncher.”

Rayney then sued Hughes for defamation (which ultimately settled privately).

Coincidentally Rayney is now back in court again in a personal capacity. He is currently standing trial in Perth charged with the murder of his wife, Supreme Court Registrar Corryn Rayney. (See the WA News account here).

Rayney will be hoping for a better run in his murder trial from WA’s Director of Public Prosecutions than that accorded in another Perth murder trial to Paul Mallard.

Mallard was convicted of murder in 1995. The High Court subsequently overturned the conviction finding the prosecution had overcooked its case by failing to disclose important exculpatory evidence to the defence. (See an account of the High Court decision at Kyle McDonald’s summary crime blog).

Just how overcooked was the prosecution case against Mallard?

Pretty. Just last month (17 years after the event!) the prosecuting counsel copped a plea before WA’s Legal Profession Complaints Committee to unsatisfactory professional conduct and agreed that the maximum applicable fine was appropriate. (The Committee’s decision here was pointed out to me by the doyen of Melbourne’s legal bloggers Stephen Warne).

What would Robert Hughes have made of this?

Maybe we already know.

He once said “Western Australian justice is to ‘justice’ what Western Australian culture is to ‘culture’.”

Farewell Robert Hughes. At least outside WA you will be missed.

Charge and countercharge of overcharging in Sydney

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Is the expression “excessive legal costs” tautological?

Cynics might say so but not our regulators.

Section 4.4.4(b) of the Legal Profession Act (Vic) makes the “charging of excessive legal costs in connection with the practice of law” (surely a further tautology) conduct capable of constituting either ‘unsatisfactory professional conduct’ or ‘professional misconduct’.

New South Wales’ equivalent legislation saw former high-flying personal injuries soli Russell Keddie struck off last month for just such professional misconduct.

According to the Sydney Morning Herald account here Keddie’s bill of $819,000 to his paraplegic client was $215,00 too high.

Keddie is unlikely to miss his ticket – he retired before he was rubbed out.

Perhaps with a view to the many similar claims against him and his former firm, he also declared himself bankrupt last month.

Keddie’s sagging public reputation is unlikely to be assisted by reports (like further SMH yarns here and here) that before his bankruptcy he transferred his half share in two properties worth a combined $6 million to his wife for – you guessed it – a single dollar each.

The SMH has given the Keddies story a lot of air since 2008 but in Victoria only readers of the Oz are likely to have heard of it.

Keddie’s eponymous firm was once NSW’s leading personal injury plaintiffs’firm. Slater & Gordon took it over for a reported $32 million in 2010. By then Keddies had been been already in strife with NSW’s Legal Services Commissioner for at least 4 years.

Radio National revisited the Keddies saga in Background Briefing last Sunday, 22 July 2012 – audio here and transcript here.

Some highlights from the ABC’s retelling:

  • Aggrieved Keddies clients have already racked up approximately $4 million in judgments against the firm’s three former partners;
  • The ABC speculates that the total overcharging judgments might eventually top $11 million;
  • Enforcement of those judgments is likely to be problematic. Of the three ex-Keddies partners sued, one is already bankrupt and the other two have reportedly had their assets frozen;
  • The overcharging claims against Keddies have been spear-headed by solicitor Stephen Firth with the apparent assistance of some ex-Keddies Deep Throat(s);
  • Coincidentally, Stephen Firth is himself defending several overcharging claims. The plaintiffs’ solicitor in those cases? None other than ex-Keddies partner (and defendant to many Firth-issued overcharging writs) Tony Barakat.

Firth has been forthright in his pursuit of Keddies – see his website here where he boasts of 11 wins totalling $1.5 million in Keddies cases for the month of April alone.

And Barakat is not bashful either. See his comments to The Australian here about the claims against Firth.

Only in Sin City?

 

 

Preparing for a mediation—not a miracle

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Mediation approaching? Care for a back-to-basics checklist beforehand? Then look at Mark McKillop’s recent blog “Ten Tips about Mediation” (link below).

But first let me top up Mark’s top ten with two extras – the twin concepts of ‘BATNO’ and ‘WATNO’.

In approximately 36 A.D. a notorious persecutor of Christians was travelling from Jerusalem to Damascus. Out of the blue (literally) he was knocked to the ground, blinded by a brilliant light and asked by a booming voice “Why do you persecute me so?” The traveller repented, recovered his sight and went on to a brief but spectacular career as St Paul, arguably the most famous convert, evangelist and martyr Christianity has ever produced.

How is this relevant to preparing for a mediation?

It absolutely isn’t. Damascus Road conversions never happen in mediations.

And yet it seems a rare mediation indeed that does not involve at least one party apparently banking on a complete St Paul-style about-face from the other side during the mediation.

You are only a lawyer. If you cannot supply lightning during the mediation don’t permit your clients to expect Pauline conversions either.

Instead, get your clients to focus their mediation preparation on the real world alternatives to mediation.

Let’s say you are for the defendants. You have told your clients that you are reasonably confident that the plaintiff’s claim is untenable and will fail entirely at trial. (So far, your punters love what they are hearing and see no reason at all to settle at mediation.)

Now the bad news. The trial is unlikely to start for another six months. It might then run, say, two weeks before the judge reserves the decision for, say, a further three months. The decision vindicating your people is already nine months and $50,000 – $100,000 away. That decision might then be appealed delaying practical finalisation of the argument for another year or so. Finally, when all the appeal rights have been exhausted your clients might discover that the costs orders they have amassed along the way are worthless against a penniless plaintiff.

And that all assumes that that your camp wins every point (which, of course, you can’t promise).

Surely your clients are looking more interested in mediation now?

As this example illustrates, even a litigant holding a strong hand should always give serious thought to settling.

And any idea of settling which is premised on the other side cheerfully surrendering at mediation after being blinded by the brilliance of your case is not even halfway serious.

Every client going into a mediation needs to have a realistic understanding of both the best and worst case scenarios if the case does not settle.

Because the mediation industry loves acronyms, these upside/downside concepts are sometimes referred to as the ‘BATNO’ (Best Alternative To a Negotiated Outcome) and the ‘WATNO’ (Worst Alternative To a Negotiated Outcome).

Settlement at mediation on the best terms apparently available will sometimes be a poor choice compared to a litigated outcome.

But settlement (or non-settlement) at mediation without prior regard to both your team’s BATNO and WATNO will always be foolhardy.

Now see Mark McKillop’s recent “Ten Tips about Mediation” here.

Slide into PowerPoint – a novice’s guide

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Are barristers the last professional presenters in the western world to adopt PowerPoint?

I made my PowerPoint début last week at a PPS Act seminar before an audience of 130 solicitors.

The feedback forms  are now in and it seems (on the statistically dubious basis of all 27 completed questionnaires) that it was a resounding success.

PowerPoint is scarcely rocket science but we’ve all seen it stuffed up too often.

So here are three suggestions that helped me:

• Get some Grade 3, 4, 5 or 6 kids to teach you the basics (really!);

• Get their grandmother to fill you in on the rest (chief of which is suggestion #3);

• Watch this video in which comedian Don McMillan does a 9 minute PowerPoint presentation on how not to do a PowerPoint presentation.

It’s funny. But it’s also excellent professional education for any lawyer ever likely to be handed the remote control to a PowerPoint projector.

Safeguard your Mareva injunction with a PPSA registration

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I have just put the finishing touches to a seminar paper I am delivering this week on the Personal Property Securities Act 2009.

My paper is not as unwieldy and dry as the PPS Act itself (is anything?) but I wouldn’t call it sexy either. I will post it on its own discrete (ie separately tabbed) page in this blog after the seminar.

For an extremely short synopsis of the PPS Act generally see my post of 10 February 2012 (which you can access by simply following the date prompts below the mugshot in the right-hand margin of this page.)

But let me take you straight to what might be the highlight for general commercial litigators with Mareva-type injunctions in their armoury (and they should be in every armoury).

Once Mareva orders (aka ‘asset preservation orders’ and ‘freezing orders’) and some analogous orders are obtained from any Australian court or tribunal it seems they can be ‘perfected’ by registration on the PPS Register.

Such registration will effectively advertise the existence of your client’s Mareva injunction to the world at large. That ‘perfection’, among other things, should constructively warn off third parties who might otherwise purchase or lend against the property in breach of a court order restraining the use and/or disposal of that property.

This new tool lies buried in reg 5.3(c) of the PPS Regulations. I am not aware of it having been used since the PPSA regime started on 30 January 2012.

Is this history waiting to be made or has it been made already?

Anyone?