A lawyer, Mr Kuek, instituted proceedings on his own behalf in relation to the cost of repairs to his motor vehicle. Kuek was unsuccessful in his Magistrates’ Court claim. He appealed to the Victorian Supreme Court, which dismissed his appeal. He then appealed to the Court of Appeal, again unsuccessfully.

The Court of Appeal ordered costs against Kuek. He sought a review of the costs order, and the costs were assessed and slightly minimised. He requested a further review of the costs order which was dismissed by Justice Beach.

True to form, Kuek also appealed Justice Beach’s decision which was upheld by the Court of Appeal. In September 2011 the Court of Appeal taxed the costs at $38,740.20 in favour of the defendant. Kuek supposedly filed a notice of application to review the costs order within the time limit stipulated in the Supreme Court Rules. However, the notice for review was not properly filed and served until March 2012, 161 days out of time.

The Supreme Court set aside the notice for review. Kuek appealed. The defendant also sought to have the notice for review struck out on the grounds that Kuek gave no reasonable explanation for filing the notice 161 days out of time, and that it had been prejudiced by the delay. It also argued that the notice for review had no real prospect of success, and that the Civil Procedure Act should be applied in this instance to support the setting aside of the notice.

Kyrou J examined the overarching purpose of the Civil Procedure Act which is to facilitate just, efficient, timely and cost-effective resolution of the real issues in dispute. The defendant submitted that Kuek had clearly breached his overarching obligations in acting un-cooperatively, prolonging the proceeding and inflating the costs of the proceeding by lodging numerous unsubstantiated appeals.

Kuek’s barrister dismissed the Civil Procedure Act stating that it contained “generalities and rhetoric, and that it’s fundamental intent… is that justice be done”. Kyrou J rejected these comments and made it clear that the Act’s aim is to ensure that litigation is carried out in an efficient, timely and cost effective manner. The Act gives the Courts the power to limit rights of parties and make remedial orders should a party breach their statutory obligations.

Kyrou J dismissed the appeal and Kuek was, yet again, unsuccessful.

Kuek v Devlflan Pty Ltd [2012] VSC 571

The Civil Procedure Act should be taken seriously by litigants and solicitors. The Act should not be treated as ‘mere guidance’, and the Courts will apply the Act where a party’s conduct is being called into question.