Directors personal liability – misleading & deceptive conduct

Despite the corporate veil, there are many ways in which a director can be personally liable for activities the company which they direct.   One such ground is misleading and deceptive conduct pursuant to section 18 of the Australian Consumer Law (Cth)(ACL).  This question of personal liability is of concern to conservative and risk averse directors who attempt to strike the delicate balance between governance and entrepreneurialism.  Misleading and deceptive conduct can occur in a variety of circumstances in business dealings.  From misleading advertising, inaccurate projections to contractual dealings between parties.  It could be as simple as making misstatement regarding a profit forecast or embellishing the outcome of a contract. [Read more…]

What is security for costs?

The reality of any litigious proceedings is that they cost money (sometimes, lots of money).  Where a party is successful in the proceeding; whether that be successfully proving the claim (Plaintiff) or defending it (Defendant), that party will generally be entitled to their ‘costs’.  Costs refers to the legal expenses incurred by the successful party in prosecuting or defending the claim (as the case may be).  Where a Defendant successfully defends a claim, they may be placed in the frustrating circumstance of facing a Plaintiff who does not have sufficient money to pay the Defendant’s costs.  In this article we consider a Court order designed to alleviate this problem – a security for costs order. [Read more…]

Counterclaiming in legal proceedings in Queensland

It is not uncommon for parties to a dispute to each believe that an action lies against the other arising from the same facts.  Where this occurs, and one party (Plaintiff) has commenced proceedings against the other party (Defendant) in Queensland, the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) allows the Defendant to commence their own proceeding against the Plaintiff within the original proceeding, rather than requiring the Defendant to commence a separate legal action.  This is known as a counterclaim.   In this article we consider the nature of a counterclaim and the rules and circumstances that govern its use in proceedings in Queensland Courts. [Read more…]

Offers to settle: Federal Court Rules c.f. Calderbank offers

In litigation, an offer to settle is an offer by one party to the other to settle the dispute out of Court.  There are numerous advantages to settling a matter out of Court, including reduced legal fees, finality of proceedings and confidentiality of result.  A key issue for litigants when making or receiving an offer to settle is to understand the potential legal costs consequences of rejecting the offer.  In this article, we consider offers to settle in the Federal Court of Australia under both the common law and the Federal Court Rules 2011 (Cth) (Rules).

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What is an injunction?

An injunction in its simplest form is a Court order directing a person or entity to do a specific thing (Mandatory Injunction) or, more commonly, to not do a specific thing (Prohibitory Injunction).  Whilst an injunction in itself can amount to final relief in a matter, it is generally sought on an interlocutory basis (Interlocutory Injunction) which is where a temporary remedy is sought to maintain the status quo until the larger matter can be heard.  If a temporary order is granted it will generally become permanent if the applicant is successful in the larger claim. [Read more…]

What is a Mareva Order?

A Mareva order (Mareva Order), also known as a freezing order or asset protection order, is a special type of interlocutory injunction which restrains a defendant from dealing with the whole or part of their assets pending the outcome of legal proceedings.  In preventing a defendant from disposing of their assets in a way which may deprive the plaintiff of an effective remedy, Mareva Orders are a tool to prevent an abuse of court processes and protect the proper administration of justice.  In Queensland, Mareva Orders are dealt with in Chapter 8 Part 2 Division 2 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). [Read more…]

Discovery in the Federal Court of Australia

On 1 August 2011 the Federal Court of Australia (Federal Court) adopted the Federal Court Rules 2011 (Cth) (Rules) and its revised regime for discovery.  The Federal Court does not require parties to provide disclosure as a matter of course.  Instead, if a party wishes to receive documents from another party (or a third party), they must seek the Court’s permission.  This process is known as discovery.  The Rules are to be read in conjunction with the associated Federal Court practice notes, relevantly Central Practice Note: National Court Framework and Case Management (CPN-1) and Intellectual Property Practice Note (IP-1).  In this article, we consider the process of seeking discovery of documents in a matter before the Federal Court. [Read more…]

The importance of evidence and its ubiquity

A fundamental step when preparing for any litigious matter is to gather evidence to support your legal position.  In Queensland, the rules of evidence are located in a number of pieces of legislation, together with a large body of case law.  The focus of this article is to provide a brief overview of evidence and why it is crucial for a party to any civil litigation matter to devote adequate resources to locating it. [Read more…]

What is your duty of disclosure?

In a litigious matter, once all the parties in the proceedings have filed their pleadings (documents such as a Statement of Claim, Defence and Reply), pleadings are said to have ‘closed’.  Once pleadings have closed, parties to legal proceedings in State based courts are usually obliged to provide disclosure.  Note that this article does not discuss the disclosure obligations in the Federal Court where the obligations regarding disclosure are different.  To many, this process may seem daunting and confusing, so in this article we consider the key elements of disclosure in Queensland under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). [Read more…]

Do you need to disclose a computer database?

In a litigious matter in the Queensland Courts, once all the parties in the proceedings have filed their pleadings (documents such as a Statement of Claim, Defence and Reply), pleadings are said to have ‘closed’.  Once pleadings have closed, parties are then under an obligation to provide disclosure.  A critical element of providing disclosure is determining what documents each party has a duty to disclose.  In this article, we consider whether or not a computer database is capable of being disclosed. [Read more…]

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