VIC Commercial Law Affidavit Relegated to Supreme Court Common Law?

Discussion in 'Commercial Law Forum' started by Skateboard, 7 May 2018.

  1. Skateboard

    Skateboard Active Member

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    My friend had a matter listed against her in the Supreme Court Commercial division where a solicitor signed and filed an affidavit on behalf of my friends brother against her. My friend attended at the court representing herself and the other party had a barrister and a solicitor. The Judge was extremely annoyed with the solicitor acting for her brother stating that he was annoyed that the matter had been presented before him and berating the solicitor for making the requests and wanting a course of action as detailed in the affidavit and then told my friend that he was going to adjourn it for two months but did not give a date.

    The judge was extremely annoyed and used some harsh language to the first solicitor. He actually held his hand up when the barrister interjected and told her to be quite. The barrister and solicitor then rushed to leave the court after the adjournment and did not want to talk to her just saying wait for the next court date.

    Four months later my friend received another affidavit this one signed by her brother also detailing his grievances along very similar lines to the affidavit signed by the first solicitor. My friend received legal advice amounting to several thousands of dollars in relation to the first affidavit signed by the solicitor that the judge threw out but who did not give a reason in court for throwing it out.

    It is now listed in the Supreme Court Common Law Division and the first solicitor is not involved and there is a new solicitors details on the paper work. My friend is annoyed at what happened as she now has to pay for more legal advice to reply to the second affidavit. Can she claim compensation for this? How do does she find out why the reasons why judge sent it from the commercial area to the common law area?
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member
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    Hi Skateboard,

    Please provide more detail, or have your friend contact me directly to discuss in confidence.

    It is very difficult to provide any real guidance, as your description of the matter is very vague.

    To start, can you please advise which state or territory these proceedings are in?

    Court proceedings will have a transcript of everything that is said. These can be ordered by the parties.

    They are very expensive, and the cost will depend on how long the matter was actually before the Court.

    Transcripts, together with the pleadings, (that is, the claim that was made by the other party, and any defence filed by your friend) and supporting affidavits, will provide some help (with legal assistance to interpret) towards explaining what has occurred.

    It is likely that the matter was filed in the wrong jurisdiction, and the judge was upset about this, as it would have been a waste of the judge's time, and has transferred it to the civil jurisdiction as it may be a civil (common law matter), rather than a commercial matter.

    Compensation/Legal Costs

    After proceedings have completed, parties can apply for costs orders.

    These normally follow the result, in that the party who wins the matter normally has some reimbursement for their costs.

    It should not be assumed that a winning party will be reimbursed 100% of costs (often times it is much less - indeed extraordinary circumstances are normally required).

    Nor should it be assumed that a winning party will always obtain a costs order in their favour.

    Costs Orders can also be affected by the general conduct of the parties, whether they have wasted everyone's time, as well as the settlement offers made, and what the actual result of the matter ends up being.

    All of the above are really matters for your friend and her new lawyer to discuss

    Please let us know whether your friend would like to transfer the matter to us so that we can be of more assistance.

    Kind regards,
     
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  3. Skateboard

    Skateboard Active Member

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    Mr James Ford

    This matter is Listed in the Victorian Supreme Court.

    I can forward you copies of the affidavits.

    I was thinking of applying for a copy of the transcript as the matter lottery only went for 15 minutes.

    Kind regards
     
  4. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member
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    Hi skateboard

    It is best if your friend orders the transcripts themselves, as you might not be entitled to obtain a copy.

    Whilst you could send me the affidavits.. it would only be part of the picture.

    Before any lawyer can assist, they would need to review everything.

    That would include the claim and other documents that have been filed with the Court, as well as the
    affidavits you have mentioned, as well as the Court transcript.

    I would prefer to deal directly with your friend, as I could be duplicating another lawyers efforts.

    I can be booked via the link below.

    Your friend urgently needs to engage a local Victorian based civil litigation lawyer, or if they cannot afford to do
    this, they need to seek free assistance from a local legal community centre in the first instance.

    I can assist, but no matter which way it goes your friend will need local legal support.

    Given that the matter is in the Supreme Court, I assume that it must be serious and involve a substantial sum of money.

    Kind regards,
     
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  5. Skateboard

    Skateboard Active Member

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    We went to court today at the Victorian Supreme Court Common-law Division and my friend was self represented. The judge upon opening the court said to the other party that had a QC, another Barrister and a lawyer that he had real concerns about the case and said that what he saw in the affidavits was not contempt of court and quoted some examples and some case law. My friend did not say anything all she had done was stood up when the judge walked in and then sat down. There was another discussion about case law and other matters with the QC and the Judge then adjourned the court so the QC could have a discussion with his client for an hour. The court was recalled and the Judge then dismissed the contempt allegation with no costs awarded. My friend prepared her own affidavit, had to travel from interstate for several court hearings, take time of work, got very stressed while waiting the six months for the court date and lost weight, got sick and couldn't go to work for several weeks. At one stage was suicidal. The whole matter was dealt with in about 20 minutes of court time if there was no chance of winning why was it listed by the court. Can she claim any compensation.
     
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