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Civil LAW TUT Qs - All tutorial questions for Sem 2 2019;
including answers derived some recorded
Civil Procedure (Queensland University of Technology)
StuDocu is not sponsored or endorsed by any college or university
Civil LAW TUT Qs - All tutorial questions for Sem 2 2019;
including answers derived some recorded
Civil Procedure (Queensland University of Technology)
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LLB306 Civil Procedure
Study Guide - Semester 2, 2019
Question 1
[
Adapted past examination question]
You have been contacted by an associate, Tom Muscles, who has provided you with a
statement from his daughter, Mandy, who has suffered personal injuries. The statement
is set out below:
“My full name is Mandy Muscles. I was born on 15 July 2002. I am single.
On the night of 25 July 2018, I went to a strip shopping centre at Dolly Street,
Everton Park, Brisbane, with my Dad, to collect some pizzas my family had
ordered. At about 8.20pm Dad drove in and parked the car in the third car space
from the right directly facing the pizza shop and adjoining the footpath directly
outside the shop. After I left the car, I entered the shop and paid for the pizzas
and a bottle of soft drink. I then walked out of the door of the shop onto the
footpath and stepped down into the car park and proceeded to my car door (the
front passenger door). At this point I tripped over a concrete wheel stop, and fell
to the ground between Dad’s vehicle and another vehicle parked to the left of
ours.
I was in a great deal of pain immediately after the fall. Dad drove me home.
Although I could walk, when I arrived home I broke into tears and felt shocked.
My arm became swollen. My mum called our family doctor and she came around
to see me straight away. She said I needed to go straight to hospital. I went to
the Mater Hospital where I was x-rayed. I had a fracture of the neck of the right
radius and a swollen elbow joint as well as grazes to my body and neck. My arm
was placed in a cast for some six weeks. I was able to go to school during most
of that time, but I was on pain killers, and I could not write, and this affected my
performance at school substantially, and I needed a great deal of help with many
tasks.
Though I was still at school, I was hoping to become a professional tennis player.
I was the number 1 player in the Queensland State School Girls Team in 2014
(when I was in grade 7) and I was the Queensland State Under 16 Title Holder at
the time of the accident. I had won that title in 2015, shortly after I turned
14 years of age. I have been either winner or runner-up of over 50 age
tournaments conducted throughout Queensland over the several years
immediately before the accident. If I did not succeed on the professional tennis
circuit, it had long been my “fall back” position that I would become a tennis
coach and maybe one day own my own centre.
It is now clear I will not be able to achieve my ambition. After the cast was
removed, I attempted to play tennis again, but found the pain too great. My
orthopaedic surgeon has now told me that I have a permanent partial disability of
between 9 and 11% loss of the efficient function of my right upper limb. Though I
will be able to manage most activities of daily life, I have been told that I will have
great difficulty with any strenuous use of my right arm on a repetitive basis. I am
told that if the symptoms of pain I still feel in my arm persist I may need an
arthroscopy of my right elbow, but that even with this surgery I will have trouble
related to repetitive work with my right arm. In short, my hopes of a professional
tennis career have evaporated. There is probably also now little hope that I could
succeed as a professional coach even if I could manage with my arm because I
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really would have needed to play the international circuit at least for a short
period and develop somewhat more of a name. I can continue at school, but I
find it hard to be motivated because I don’t really know what I want to do now.
Because of this I have also become very depressed.
In relation to the accident I note there was a high level of glare caused by the
really bright lights within the pizza shop, and also there were two awning-
mounted halogen lights shining back towards the pizza shop window and in
actual fact towards the face of a person emerging from the shop. There was
some other lighting outside the pizza shop, but it obviously wasn’t enough,
because I just didn’t see the wheel stop.
In my view the accident has had enormous impact upon my life and I believe I
should be able to recover a substantial amount because of it.”
Tom has made an appointment to see you with his daughter this morning. Write notes
on the following:
(a)
What questions will you need to ask your client/s at the initial interview?
Before start asking questions, ensure a conflict check has been conducted to determine
if the new potential client will be a conflict of interest or conflict of duty to a prior client.
This is necessary as according to the ASCR. ASCR r25
– Mandy and Tom have the
potential of being witnesses. As the lawyer there are special circumstances, there is a
minor and a parent, therefore it is reasonable for both of them to be in the meeting at
the same time. If acting for Corporation – more likely to be in a situation where you
would breach ASCR r25
– e.g. CEO, Chief of Board, all of whom likely to be witnesses,
thus could affect how they would respond at witnesses. 1.
Full details of the circumstances of the accidents – ask the clients if they would go back to the site with you – see what lights are on/not on etc. 2.
Where there any other witnesses?
3.
Where the car lights on?
4.
Have any changes been made since regarding the lighting? – whilst changing something post-accident cannot be used to infer prior issues, it is still important to help draw the picture of the environment where the accident occurred. 5.
Has Mandy suffered any previous injuries? 6.
Has Mandy has any gratuitous or commercial paid help with daily tasks of living?
7.
Was the wheel stop secured to anything?
8.
What footwear was Mandy wearing? Stilettos vs runners?
9.
Had she been there before – if so, how often?
10.
The condition of the wheel stop?
11.
What had she been doing that day? Drugs/alcohol
12.
Was the second car there when she arrived?
13.
Any signs/postage/warnings?
Damages in the Civil Liability Act – ‘general damages’ s51 include pain and suffering,
amenities’ of life, disfigurement etc s60 CLA – Court cannot award interest on general
damages. 14.
Written authorisation from the client - to approach the doctor to obtain medical records. 15.
Sch 2 Civil Liability Act – limited by s54 to amount equal to 3x average weekly earnings. How much does she earn?
16.
Also – future loss of earning capacity will be discounted by 5% s57 CLA and s61 Civil Proceedings Act
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17.
Need to find out what the client actually wants?? – litigation? (b)
What preliminary information and advice will you give your client?
1.Keep all relevant evidence, including medical records, transportation costs – give
originals/copies on file. 2. Explain the limitation period – limitation of actions Act – under 18, and for personal
injury 3-year time limitation to bring the action. Note Civil Liability Act/Personal Injury
Proceedings Act – suspension of time s29 LAA will suspend the time limitation until
Mandy turns 18 and then she has 3 years after that time to bring the action. S19 PIPA –
suspends the section s9 obligations – if going to make a claim, serve a section 9
statement of claim within 9 months of the accident happening, or 1 month after you
have retained lawyers. Will be suspended until she is 18. She could start the action
before she turns 18 but will need a litigation guardian – usually the parent, e.g. Tom.
UCPR r95 and Form 13 (Consent of litigation Guardian needs to be filed). 3. the costs arrangements – the LPA P3.4 obligations on lawyers to disclose the costs &
usually a client agreement to be filled out. If you don’t, the most you can charge is
$1500. 4. You won’t give any conclusions; the first interview is about gaining as much
information as you can – you really can’t give full advice until you have collected all the
information. 5. Any conflict between Mandy/Tom – might need to consider an independent person to
look after the interests of Mandy. 6. Other forms of dispute resolution available – mediation. Under PIPA there is a
compulsory conference required within the first year before litigation. (c)
What steps will you take immediately after the initial interview?
1.
Get the medical records from the hospital or any other doc who treated the client
2.
Authorities for statutory refunds from different orgs who provided refunds or income
3.
Write to the client to confrm what was said in the interview – including the limitaton period – the date that Mandy has as a deadline – put that into a bring up system – return the fle to you, 6 months before the deadline to remind them. 4.
Do some searches to fnd out the registered owner/tenant of the Pizza Shop
5.
Look at Australian Standards of Equipment – wheel stop standards 6.
Go to the place of the accident – possibly with the client 7.
Take detailed notes of your interactons with the client/open a client fle
8.
Talk with any witnesses -if there are any. 9.
Consider drafing a statement for your client, that is the chronology & facts, with diferent documents/evidence included with the statement. Trying to get a document with all material facts to help draf the statement of claim & then get them to sign it (so if down the line they change their mind, you have something to point to)
QUESTION 2
Refer to the material received in relation to your client, Mandy Muscles. Assume that
despite compliance with the pre-court procedures under the Personal Injuries
Proceedings Act 2002
(Qld) the matter did not settle and it is necessary to commence
litigation.
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(a)
Consider whether each of the following courts would have jurisdiction to hear the
proceeding:
The Supreme Court of Queensland
The Supreme Court of New South Wales
The High Court
The Federal Court
The District Court of Queensland
The Magistrates Court of Queensland
1.
The Supreme Court of Queensland – consider whether the defendant was present in Qld (
Laurie v Carroll
). Consider whether company is registered in Qld or NSW. Overseas would make some issues with serving the statement of claim. Depend on who
is the registered owner of the carpark and pizza shop. Find out more information to serve the right person & include the right parties. Common law basis for territorial basis. – subject matter and territorial jurisdiction. S58 Constitution of Qld – subject matter jurisdiction satisfied.
2.
Territorial Juris – if defendant is located there yes. If located in Australia – yes because of SEPA. Subject matter – yes no problems, because supreme court of NSW has similar
jurisdiction as the QLD supreme court.
3.
High Court of Australia s75 76 Commonwealth Constitution and s38 of Judiciary Act – nothing in the facts to give it original jurisdiction. Nothing to suggest P or D in different states or the P is the state. 4.
Federal Court – nothing to suggest falls in the subject matter of federal court. Attempt for
cross vesting scheme to vest state juris in federal court but held invalid Re Wakim s4 Jurisdiction of Courts (Cross Vesting) Act Qld amended to reflect the decision. Qld parliament power to give federal court jurisdiction of state based matters 5.
District Court of Qld – subject matter and territorial jurisdiction is okay. But Monitory limited to max of $750k s68 District Court of Qld 6.
Magistrates Court of Queensland – subject matter and territorial jurisdiction is okay. But monitory limited to max of $150k s5 Magistrates Court Act.
7.
Monitory limits =maximum amount court can award. They are not minimum amounts. If it
could have been run in a lower court, you might get an adverse costs order may be awarded against your client. So scaled against District court instead of supreme court. (b) Assume you have determined the proceeding should be commenced in the
District Court of Queensland. Draft an appropriate initiating process.
R33-35 for where to file proceedings. Initiating process will be in a claim FORM 2 –
Claim
. Claim will have full title complying with r6(1). If by claim or by originating
application. Must be started by claim unless rule permits or requires it to be
commenced by application. But because we’re seeking damages, it really needs to be
started as a claim with an attached Statement of Claim. There is an issue of fact and
law – so it will definitely be a claim. QUESTION 3
Refer to the material received in relation to your client, Mandy Muscles
. Draft a
Statement of Claim
on her behalf for losses sustained in the amount of $155,000. This
amount is comprised of the following:
$50,000 for extensive medical treatment, including physiotherapy, psychotherapy
and rehabilitation, $5,000 for costs associated with interruption of schooling,
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$40,000 estimated loss due to permanent partial disability, $30,000 for pain and
suffering and $30,000 for loss of amenities.
You may assume any additional facts you feel are appropriate.
DISTRICT COURT OF QUEENSLAND
REGISTRY: BRISBANE
NUMBER: D ………. of 20
19
PLAINTIFF:
AMANDA MUSCLES by her Litigation Guardian Tom Muscles
AND FIRST DEFENDANT:
PROPERTY PLUS PTY LTD (ACN….)
AND
SECOND DEFENDANT:
PERFECT PIZZA PTY LTD (ACN…)
STATEMENT OF CLAIM
This claim in this proceeding is made in reliance on the following facts:
1.At all material times to this action, the plaintiff:
(a)
was a natural person residing at 44 Tennis Ball Lane, Everton Park, Brisbane in the
State of Queensland;
(b)
was female; and
(c)
was born on 15 July 2002.
2.At all material times to this action, the first defendant:
(a) was a company incorporated under the Corporations Act 2001 (Cth);
(b)
was the registered proprietor of land located at Dolly Street, Everton Park, Brisbane in
the State of Queensland, more particularly described as Lots ……… on RP ……… (the
“
Site
”);
(c)
was the registered proprietor of premises situated at the Site;
(d) was the occupier of the car park area situated on the Site (“
Car Park
”).
3.
At all material times to this action, the second defendant:
(a)
was a company incorporated under the Corporations Act 2001 (Cth);
(b)
was the registered lessee of part of the ground floor of the building erected on the Site
on the registered lease more particularly described as Queensland Department of
Natural Resources and Water, Dealing Number ……… (“
Pizza Perfect Premises
”); and
(c)
traded in those premises as a retailer of fast food, including pizzas, under the name of
Pizza Perfect.
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4.On 25 July 2018 at or about 8:20 pm, the plaintiff:
(a)
was lawfully upon the Car Park. (b)
attended at the Pizza Perfect Premises to collect an order of pizzas.
(c)
whilst leaving the Pizza Perfect Premises and returning to a vehicle that was parked in
the Car Park, tripped on a concrete guard separating the footpath outside the Pizza
Perfect Premises and the Car Park.
(d)
consequentially fell heavily to the ground and suffered personal injury, loss and damage.
5.The plaintiff’s personal injury, loss and damage was caused by the negligence of the first
defendant and the second defendant. This is actually a conclusion of law that is
permitted. Negligence of the First Defendant
6. The first defendant, as occupier of the Site and Car Park, owed an established duty of care to
the plaintiff in respect of risks of physical injury arising from the conditions of the Site and Car
Park.
7. The scope of the duty of care owed by the first defendant to the plaintiff was to ensure the
plaintiff was not exposed to an unreasonable risk of physical injury.
8. The standard of care owed by the first defendant to the plaintiff was that of a reasonable and
prudent business providing retail shopping facilities and parking.
Paragraphs 6, 7 and 8 are points of law which are not necessary to plead but are
permissible: r 149(2). However, if they are pleaded, then you must ensure that you plead
the material facts in support of these points. See also Colbran et al [12.2.7].
9. The first defendant, when applying section 9 of the Civil Liability Act 2003 (Qld), breached the
standard of care owed to the plaintiff by:
(a) failing to take any or any adequate precautions for the safety of the plaintiff whilst she
was lawfully on the premises;
(b)exposing the plaintiff to a risk of injury of which it knew or ought to have known, namely
the risk of a trip and fall injury on the concrete guard;
(c)failing to paint or otherwise mark the concrete buffer with reflective paint or other like
material adequately or at all so as to warn or adequately warn persons such as the
plaintiff travelling between the premises and the adjacent car park of the existence of the
concrete guards;
(d)failing to conduct any inspection and/or maintenance of the concrete guards adequately or
at all so as to ensure that any existing paint or other material present on the concrete
guard was sufficient so as to highlight the existence of the concrete guard to persons
such as the plaintiff;
(e)failing to illuminate the adjacent car park area adequately so as to ensure that the
concrete guards were readily visible;
(f)failing to warn the plaintiff adequately or at all of the existence of the concrete guards; and
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(g)failing to warn the plaintiff adequately or at all of the risk of injury from tripping and/or
falling over the concrete guard.
Negligence of the Second Defendant
10. The second defendant, as occupier of the Pizza Perfect Premises, owed an established
duty of care to the plaintiff in respect of risks of physical injury arising from the conditions of the
Pizza Perfect Premises and Car Park.
11. The scope of the duty of care owed by the second defendant to the plaintiff was to ensure
the plaintiff was not exposed to an unreasonable risk of physical injury.
12. The standard of care owed by the second defendant to the plaintiff was that of a reasonable
and prudent business carrying on the supply of fast food and parking to the public.
Paragraphs 10, 11 and 12 are points of law which are not necessary to plead but are
permissible: r 149(2). However, if they are pleaded, then you must ensure that you plead
the material facts in support of these points. See also Colbran et al [12.2.7]. 13. The second defendant, when applying section 9 of the Civil Liability Act 2003 (Qld),
breached the standard of care owed to the plaintiff by:
(a)failing to take any or any adequate precautions for the safety of the plaintiff whilst she was
lawfully on the premises;
(b)exposing the plaintiff to a risk of injury of which it knew or ought to have known, namely
the risk of a trip and fall injury on the concrete guard;
(c)failing to paint or otherwise mark the concrete buffer with reflective paint or other like
material adequately or at all so as to warn or adequately warn persons such as the
plaintiff travelling between the premises and the adjacent car park of the existence of the
concrete guards;
(d)failing to conduct any inspection and/or maintenance of the concrete guards adequately or
at all so as to ensure that any existing paint or other material present on the concrete
guard was sufficient so as to highlight the existence of the concrete guard tom persons
such as the plaintiff;
(e)failing to illuminate the adjacent car park area adequately so as to ensure that the
concrete guards were readily visible;
(f)failing to warn the plaintiff adequately or at all of the existence of the concrete guards; and
(g) failing to warn the plaintiff adequately or at all of the risk of injury from tripping and/or
falling over the concrete guard.
personal injuries including the following:
(a)
fracture to the neck of the right radius;
(b)
swollen elbow joint;
(c)
grazes to body and neck;
(d)
considerable and continuing pain;
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(e)
permanent partial disability of between 9 and 11 per cent loss of efficient function of the
right upper limb; and
(f)
psychiatric illness.
including the following:
(a)
extensive medical treatment, including physiotherapy, psychotherapy and rehabilitation
$50,000
(b)
schooling interruption
$5,000
(c)
permanent partial disability of between 9 and 11 per cent loss of
efficient function of the right upper limb
$40,000
(d)
pain and suffering; and
$30,000
(e)
loss of amenities
$30,000
Total
$155,000.00
The plaintiff claims the following relief:
$155,000 in damages together with interest under s 58 of the Civil Proceedings Act 2011
and
costs.
Signed: ..........................
……………...
Description: Solicitors for the plaintiff
NOTICE AS TO DEFENCE
Your defence must be attached to your notice of intention to defend.
Insert Debt or Liquidated Demand if necessary – which is not the case here but if
needed R 150(3) – required for liquidated damages (debt)
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WEEK 4 TUTORIAL: Joinder of Claims and Parties;
Jurisdiction and cross-vesting; Service
QUESTION 1
[adapted past examination question]
Gayle Gardener was a self-employed gardening contractor. On 2 February 2016, Gayle
was performing gardening services at the home of Tom Tenant at Beenleigh in
Queensland. Having mowed the rear lawn of Tom’s home with her electric mower,
Gayle proceeded down the side of the house towards the front. As she passed the tap
at the side of the house she put her left hand down to the tap to turn on the watering
system for the back yard and garden. However, as she did so, Gayle received a severe
electric shock. The shock threw Gayle awkwardly over a 1 metre high retaining wall on
the boundary of the property, as a result of which she suffered severe back injuries.
Gayle has since undergone several operations but has suffered a severe permanent
disability to her back as a result of the accident.
Investigations revealed that the mower used by Gayle was faulty. The mower had been
serviced by Rita Rogers the previous week. Rita carried on business as “Rita’s Repairs”
but had not registered the name as a business name. In the ordinary course the fault
would have simply blown a fuse at the home’s electrical switchboard. However,
inspections revealed that a 1 metre piece of hose piping which ran from behind the tap
and connected with the plumbing system of Tom’s home was plastic, instead of metal
piping. This meant that instead of providing an earth leakage for the home in the event
of the operation of a faulty appliance, the house had become “live” when the appliance
had been used, resulting in Gayle receiving the electric shock and back injury.
On 3 January 2019 Gayle filed a claim in Form 2 out of the Brisbane Registry of District
Court of Queensland against Tom Tenant and “Rita’s Repairs”, alleging that the
negligence of either or both the defendants had caused her injuries.
Several days later Tom issued a third party notice to Leanne Landlord, alleging that
Leanne was in breach of her contract to provide safe premises, and negligence. In
March 2019 she issued a third party notice against Hong Handiman, Leanne’s former
boyfriend. The notice alleged that, though holding no building qualifications, Hong had
undertaken to do the construction work for an extension to Leanne’s then home in
2010. It further alleged that as part of the work Hong had inserted the plastic piping, and
that Leanne had been unaware of this, and indeed of the danger of this, until after
Gayle’s accident.
Advise, with reference to all legislation and rules of court:
(1) Are there any difficulties with the proceedings as commenced against Tom and
“Rita’s Repairs”?
1. Has the claim been filed in the appropriate registry? – happened in Beenleigh – but
Brisbane is a central registry r33 UCPR – it is okay. 2. Amount of damages claim is within the district court limit – 750K. 3. Gale commence action within 3 year time limitation period – made it by one month.
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4. Assumption that she has complied with all PIPA pre litigation requirements – ie
mediation
r65(1)(a) or (b)
– joinder of defendants a) common Q of law/fact or same transaction. 1. Current discharging from mower
2. Current forming a circuit due to not being earthed properly Both are required to explain the injury. More difficult issue is common q of law or fact
(r65(1)(a)).
Legal issue – existence of Duty of care (Tom to Gayle – safe work environment) Rita’s
legal issue – competent and safe repairs. Breaches of separate duties. Separate facts.
If sued separately, still need to hear evidence of both tap and mower. Less likely that
R65(1)(a). R65(2)(a) – less likely to arise, as according to Gayle’s theory, they both contributed to
the injuries. Could claim there is doubt as to how to apportion it, it is more likely R65(2)
(b) will apply. Rita’s repairs – can gayle bring an action against “ritas repairs” yes. R90(a). But
obligated to find out the names of persons carrying on the business and amend the
proceedings accordingly r92(2). (2) Can and should Gayle join and serve any further parties/causes of action?
Action is currently constituted, not allowed relief from Leanne or Hong if successful
against Tom/Ritas Repairs. R69(1)(b) – court can add parties at any stage of
proceedings. Macquarie Bank v Lynn –
Holmes J interpreted liberally – very little
difficulty to join party. Gayle should join both as defendant (Leanne and Hong). If Tom
successful in saying Leanne and Hong were also negligent, and Gayle had not included
them in the original proceeding as defendants, R67 – oblige the court to adjudicate
against the parties before it. Meaning, Gayle has no rights against them. Only negative,
is the risk of an adverse cost order should they not be found liable. Seek opinion from
counsel. If liability is placed on Leanne or Hong or both, but Tom is found in the 3
rd
party
action not liable, if Gayle has not joined L or H, she can’t get damaged awarded by the
Court. To join Leanne – can by application of R65(2)(b) – similar to how Tom could be
joined. Hong – less clear there is a cause of action; their relationship may be too
remote, but it would be worth to join by arguing similar questions of facts r65(2). If seek
to join those, action against them is statue barred. The fact the work done by Hong was
11 years ago – Gayle would argue the cause of action did not arise until the defect
arose. Need to consider when and if the court may include/substitute after the end of a
limitation period r69(2)(f). Consider using auth montomory v pickard – the discression to
join outside limitation period will not be considered lightly. Gayle would need to argue
that relif against Tom as tenant, commenced before the end of the limitation period, and
the remedy she is seeking unless the landlord (Leanne) is joined as a defendant. (3) Are there any difficulties with the third party notices issued by Tom and Leanne?
Reasons that a party can issue a third party notice r192.
Toms notice
– falls within r192(c)and possibly(a) but not (b). Appears to be valid third
party notice. Issues several days later – before delivered defence to gayle. R194(1)- not
to be filed until defendant has filed defence unless court gives leave.
Leanne notice – r207 entitled to join a 4
th
party. R192(c) although it is issued by a third
party. Difficulty is that there has been considerable delay. R194(1) when read with r207
– third party cannot issue notice unless files notice within 28 days after time D made TP
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claim. Notice was issued outside that time and not validly issued. Anticipated that leave
would be obtained for this issue if she made a court application. (4) What advice would you give to Rita Rogers?
As Rita is sued in the unregistered business name, she will have to file NOITD in her
own name and not business name and comply with r191(3
) and provide list of names
and places of residence of all persons who are carrying on business/name style as at
date of proceeding started. If liability established against her, that she could obtain a
contribution under the law reform act from the other defendants. Issue notice claiming
contribution – it is Form 15; Rule 208
- if the only relief claimed is contribution,
defendant may file and serve notice without further pleading
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LLB306 Civil Procedure
Study Guide - Semester 2, 2019
QUESTION 2
A wishes to bring a proceeding against B Limited (a company with its registered office in
Queensland) for passing off and/or breaches of s 18 of the Australian Consumer Law
(Schedule 2 to the Competition and Consumer Act 2010
(Cth)). Consider which of the
following courts would have jurisdiction in respect of this proceeding, and why?
The Supreme Court of Queensland
The High Court
The Federal Court
1.
The supreme court of qld – registered in qld – can be served here and therefore no territorial jurisdiction. All jurisdiction necessary for justice in Qld. Also has jurisdiction in respect of s18 claim – s138(B) conferred jurisdiction on state courts. 2.
The High Court – ss75/76 Constitution – s38 Judiciary Act. There is nothing on the facts that would give the HC original jurisdiction. Nothing to suggest P or D are in different state, or the P is a “state”. Persons of different state must be actual people. Australiasian Temporance …v Howe. Appellete Jurisdiction
3.
The Federal Court – jurisdiction for claim under ACL (commonwealth act) judiciary act s39B – Prima Facie, passing off is a state matter (common law) – federal court doesn’t. because it is joined with a federal law claim; if they are within the scope of the one contraversey, and thus within the ambient of “matter” it can be brought into the accrued jurisdiction Fencott V Muller. Note – should the trial start and the court decides, the federal claim is not successful, the court can continue to assess the common law claims.
QUESTION 3
Fred was driving down a street beside the gardens in Brisbane when Fred was involved
in an accident with a pedal cycle cab emerging from the gardens against a red light.
The cycle crumpled the fender of Fred’s antique motor vehicle and smashed the left-
side lights. The cyclist, Barny, was flung onto the bonnet and destroyed the gold-plated
mini bowling ball mounted there, bent the bonnet and cracked the windscreen.
Fred sued Barny in the District Court for property damage of $265,000.
The cyclist, Barny, issued third party notices to:
(a) Barny’s employer Slave Driver and Co seeking damages for his personal
injuries; and
(b)
the 3 passengers in Barny’s cab (Tom, Dick and Harry), seeking to prove that
they are responsible for the accident as they distracted him by flashing camera
light bulbs continually.
The defence revealed that the pedal cycle cab is a registered motor vehicle owned by
Slave Driver and Co. A company search reveals no company or firm registered as Slave
Driver and Co.
(i)
Advise Fred whether Fred can and should join any further parties and causes of action referring to all relevant rules of court and statutes.
Fred should add Tom Dick and Harry. R203-205. TP actions are actions within actions
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to be determined concurrently
. R65(2) –
where there is doubt the person from who the
P is entitled relief, or the respective amounts each are liable, or damage/loss to Fred by
more than one person. Employer is vicariously liable for Barny and may provide to be a
more worthwhile defendant. They may be sued in company name despite not being
registered r90, obligation on P to find out who is doing business under that name. If
Fred can find out who is doing business under that name, amend to include those
persons and not continue with business name. Join them all. (ii)
Advise Barny if his third party notices are valid.
R192 – be able to show one of those three have happened. Employer – his personal injury claim is not related, and not substantially the same as Fred’s (personal injury vs property damage), the third party notice is not validly issued. Passengers – r192 (a) contribution/indemnity and (b). QUESTION 4
[Adapted past examination question]
You act for Polish Promotions Pty Ltd (“Polish”) which promotes tours throughout
Australia by performing artists.
In July 2017, Polish entered into a contract with a group of performers called
themselves the “Magic Mob”. The Magic Mob consisted of Vanish, Rabbit, Float and
Flame. Under the contract Magic Mob agreed to travel to various locations in Victoria
and South Australia to perform illusions. The contract was made in Brisbane.
The tour began at Ceduna, South Australia, to rave reviews but following a performance
in Adelaide, South Australia, on 8 January 2018, the members of Magic Mob had a
huge disagreement and decided to terminate their relationship.
The break-up caused Polish to lose a considerable amount of money. So, in June 2018
it issued a claim out of the Supreme Court of Queensland against Vanish, Rabbit, Float
and Flame, claiming damages for breach of contract. The address stated in the claim
for each defendant was that provided for “the Magic Mob” in the contract i.e. 24
Ashleigh Grove, Ashgrove, Brisbane.
You engaged process servers, who advised that service on the defendants at that
address was unsuccessful. However, the process servers have provided you with the
following information:
A firm of theatrical agents called Galaxy Goers, receive and distribute profits
from the Magic Mob to all four former members. Galaxy Goers is based in
Queensland but will not reveal the whereabouts of any of the former members of
Magic Mob.
Vanish lives in Brisbane. On the day of the issue of the claim, she was in
Canberra taking part in a performance at Parliament house but returned the next
day. Despite frequent attempts it has not been possible to serve her, although it
is known that she regularly visits Galaxy Goers.
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Rabbit is now believed to be living in Freemantle in Western Australia. He has
separated from his wife whose address is known, although Rabbit’s address is
not known.
Float is living on a farm in Dubbo in Western New South Wales.
It was also ascertained that Flame is residing in Los Angeles, and performing
regularly at Disneyland. He has no intention of ever returning to Australia.
Polish is eager to proceed with the action as quickly as possible.
Advise in detail what steps are necessary to proceed with the action against all of
the defendants.
If any documents should be prepared, outline the contents of such documents.
Include in your answer reference to applicable legislation and/or rules of court.
Action has not been a year but if not affected within one year will need to apply r24. GP: Personal service – need to state that needs to be done personally r105 except for
an order for substituted service. Vanish
– outside of Qld at the time of the claim issued. Territorial jurisdiction over that
person as she is within Australia (SEPA Act). Laurie v Carroll was the common law auth.
Cannot be location for personal service. Lives in Brisbane – further attempts to be
made, however if unsuccessful an application could be made for substituted service
r116
Portal v Froidenberg 1.
Exists a practical impossibility of service
2.
Method of service proposed will in all likelihood be likely to bring it to attention to Vanish
File an application seeking an order for substituted service and provide a supporting
affidavit stating all the various methods of attempts made to serve on Vanish and how
came about knowledge of Galazy Goers – if going to ask to service on Galazy Goers, it
needs to show why it is likely to have contact with Vanish to bring it to the attention of
Vanish. Application probably successful. Identify relationship between Vanish and
Galaxy Goers and likely contact. Rabitt
– in western Australia. Clearly within territorial jurisdiction r123. Substituted
service could be affected if same 2 points found as above. Not enough information on
the facts to put into the affidavit. Look online or white pages etc or electoral role. What
is known about the separation – if you can establish that Rabit still has contact with his
wife, that may be where the service can be constituted. SEPA for interstate service –
Form 2, but going to need to have a prescribed notice. S16 SEPA; time for NOITD stays
at 28 days s17 SEPA. Flame
– can be served in LA because his whereabouts has been known. Necessary it
falls within r125; yes because contract was made within QLD i.e connecting factor to be
met is satisfied. Appropriate of manner of service ; hauge convention party to
convention the easy option is to effect service on Flame under the convention. R130D
–
Polish can apply for request to service in Hauge Convention. Will have to pay costs for
international service. Certificate of service is sufficient to establish sufficient service and
that the method is compatible with the law in force in the country service was affected.
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QUESTION 5
Susan was involved in a motor vehicle accident in October 2018, as a result of which
Susan’s prestige motor vehicle was irreparably damaged. The vehicle was valued at
$140,000. The accident was between Susan (owner driver) and a vehicle owned by
Plum Pty Ltd and driven by an employee David.
You have ascertained the following facts in relation to the defendants:
(i)
David resides at 22 Lilac Avenue, Tweed Heads, New South Wales.
(ii)
David has since the accident obtained employment with an oil rigger in Bass
Strait working five months straight on the rig, then having two weeks off. Your
agents have advised that David will be home in July and again in December.
(iii) Plum Pty Ltd (ACN 123 456 729) is a company incorporated in Queensland,
having its registered office at 15 Rose Road, Eagle Farm, Queensland.
(iv)
Plum Pty Ltd's solicitors are listed in the company search as Grabbit & Gone and
Co Solicitors and Notaries.
Your supervising partner requires you to arrange for service to the defendants.
Prepare a short memo outlining the options that exist for service on each
defendant. Include advice as to how service would be effected in each case, and
discuss statutory considerations which you should take into account.
Who would be defendants and why? Joinder rules – r65 Service of originating process
– r105 personally Magistrates Court – r111 ordinary service would be permissible Give the document, or copy of document personally to the person. If they don’t accept
it, you can put it down in front of them and tell them what it is r106 On a corporation r107 in the way as per the Corporations Act 2001. Which provides on
the registered office or personally to a director. Form 46 – Affidavit in standard form to state what you did to serve the documents. A service record is often completed. You wont always file an affidavit for each time you
serve documents, so keeping this record is important as down the line, if there is
dispute over the service of documents, you can file an affidavit based on the information
in that record and annex a copy of that record to your affidavit. David – SEPA s15(1) provides that service can be affected anywhere in Australia. The
prescribed notice needs to be attached and the service cannot be effected on Xmas or
Good Friday r101. And the prescribed notice for service interstate, regulation 6 of SEPA
Form 1 in Schedule one. Possible substituted service r24(1). Claim in force for one year, extension if you cant
serve within that year.R116 for substituted service. Plum pty Ltd – serve as according to the corporation act R107. Leaving /posting to
registered office or personally to the director s109X(1). Prove service by post more
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strict.
May be possible to serve the solicitor of plub – if only the solicitor accepts service for a
party R115(1). And make a note on the copy of the document that you take to the effect
that they solicitor accepts service. In practice, you (as a solicitor) cant accept personal
service unless you have received authority to do that. Get that in writing so the client
cannot claim you don’t have it. Effective so long as proved they had authority to accept. WEEK 7 TUTORIAL: Pleadings
QUESTION 1
Mark McKey, a resident of Gatton, Queensland, contacted Bruce Zimplin to look after
his bookkeeping and tax affairs. Mr Zimplin had been an accountant and auditor for
many years and was the principal of Wizz Bang & Company (
WB & Co
). From about 2017, Mr Zimplin provided Mr McKey with a range of accounting services,
including financial and tax-related advice. Mr McKey, being a researcher in animal
science, had developed an interest in Soofy sheep, specifically in their breeding, the
production of lambs from embryos, and the raising of these sheep. His flock of Soofy
sheep was growing in number and had reached 400.
Mr Zimplin’s daughter-in-law, Mrs Elizabeth Farmer, was the owner of a small Soofy
sheep breeding property in the Byron Bay hinterland. She sought to build the business
and make substantial profits from the sale of the wool and semen straws from this new
breed of sheep. In about the middle of 2018, Mr McKey was considering the purchase
of some Soofy semen straws and was discussing this with Mr Zimplin. Mr Zimplin
suggested Mr McKey consider purchasing the straws from Mrs Farmer. Mr McKey
asked Mr Zimplin whether, based on Mr McKey’s financial position, that could be done,
and Mr Zimplin agreed. As a result, and unaware that Mr Zimplin and Mrs Farmer were
related, Mr McKey placed an order for semen straws. Some 1000 semen straws were in
fact purchased by Mr McKey at $50 per straw and the total payment of $50,000 was
made to Mrs Farmer. Mr McKey and Mrs Framer spoke often to each other regarding their respective Soofy
flocks. About the middle of 2018, Mr Zimplin telephoned Mr McKey in relation to the
possible acquisition by Mrs Farmer of some of Mr McKey’s Soofy flock. Early in August,
Mr Zimplin and Mrs Farmer travelled to Gatton. On 4 August 2018 they met with Mr
McKey and discussed how Mr McKey’s flock might be valued and Mr McKey expressed
the view that his full blood Soofy breeding sheep were worth approximately $10,000
each. Mr Zimplin said that if a substantial number of animals were involved in the
purchase, a premium would attach because the number would permit a viable business
operation. Mr McKey said that he would be willing to transfer Soofy breeding
information to Mrs Farmer for a period of three years if the sale occurred. On 10 August 2018, Mrs Farmer sent an email to Mr Zimplin showing figures she had
derived by means of a cash flow exercise, relating to Mr McKey’s sheep. The number of
sheep referred to was 200; the calculated price per sheep ranged from $11,000 to
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$14,000; and the value of that flock ranged from $2,200,000 to $2,800,000. This
reference was followed by the statement, “NB not including rams”. On 11 August 2018,
Mrs Farmer and Mr McKey were able to discuss these amounts by video call on Skype.
On 16 August 2018, Mrs Farmer sent an email to Mr McKey, with a copy to Mr Zimplin.
The subject line read, “Calculations behind pricing of flock”. The email itself
commenced with the statement, “Attached is the file which shows how I have come up
with my valuation of the flock.” It then stated that Mr Zimplin had requested Mrs Farmer
to show the difference resulting from the use of different discount rates. Attached was a
spreadsheet setting out details of the calculations and data, with resulting values. The
values were the same as those communicated to Mr Zimplin in the email of 10 August
2018. On 24 August 2018 there was a telephone conversation between Mr Zimplin and Mr
McKey. Mr Zimplin said, as agent for Mrs Farmer, he was to convey a message that
Mrs Farmer agrees to purchase half of Mr McKey’s Soofy flock. 200 Soofy sheep (150
ewes and 50 rams) were delivered to Mrs Farmer on 28 August 2018. Despite
continued discussion regarding acceptance of the rams by Mrs Farmer, no resolution
had been achieved. Mr McKey continues to have conversations with Mrs Farmer,
however, he is still awaiting payment of the sale price from Mrs Farmer.
Mr McKey seeks your legal advice to recover payment of the sale price from Mrs
Farmer, which he asserts to be $2,800,000. He says written request for payment were
sent to Mrs Farmer on 18 September 2018 and 18 November 2018 and provides you
with the documents included with the following questions:
a)
Can resolution of the dispute be accomplished without litigation?
Need to know exactly what the client wants. Only want payment of sale price – so what
alternatives are available? May be in the best interest to seek to preserve the
commercial relationship. A simple phone call may be all it takes to make payment.
Possible to send a payment demand and assert rights to payment and deadline to pay. b)
What causes of action are available to Mr McKey?
Mr McKey sold livestock and delivered them as agreed, Mrs Farmer failed to pay for the
sheep and he wants payment. Sale of sheep, not payment and payment is required.
Could possibly common law, recovery of debt – partly oral/partly written. Or sale of
goods act – transfer of property. S18ACL misleading and deceptive conduct could be
against Mrs Farmer, but very little factual support. Breach of contract by conflict of
interest and his fiduciary duty for financial advice. Common law against Mrs Farmer.
c)
Which common law cause of action should be commenced to recover the remedy that Mr McKey is seeking from Mrs Farmer?
Breach of Contract is the obvious cause of action to pursue. The existence of a binding
contract is an issue. d)
What further facts and/or documents would you wish to obtain from your client before you commenced such proceedings?
Get the detailed statement from your client. Cost agreement discussion. Get copies of
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all relevant documents. Date of the alleged conversation “in the middle of 2018”. It is a
material fact. Nature and content of 11 August of the Skype call – any other details,
anybody else present at the time (possible witness) was it recorded? Was there any
other things put into writing? Email, notes, meeting minutes. Documentation to identify
Mr Zimplin’s phone number. Full description of the particular sheep in question –
beyond age and gender and include breading records, branding, tag numbers etc. Full
account as to who said what and to whom and the various times that comprise the
alleged contract regarding delivery. Ask the client why Mrs Farmer might neglect/refuse
payment. She could be insolvent etc. Fact dispute inclusion of rams has arisen, may be
one of the primary reasons why she refuses to pay. Delivery confirmation from
transportation company to show it was accepted. Proof that the two are related.
Evidence to reinforce he is an agent for Mrs Farmer. e)
If Mr McKey were to retain you as his lawyer and then gives you instructions to commence litigation, what are the appropriate legal proceedings on the facts given?
Think about whether he can sustained any cause of action and how to commence
prosecuting that cause of action. (i)
Can the proceedings be started by originating application? Why?
Would not be initiated by an application r11 because this matter does not primarily be a
question of law, it is also around the question of facts. Examining witnesses etc. (ii)
Presuming the proceedings cannot be started by originating application, draft
the appropriate court documents to enable commencement of the
proceeding. Assume the only documents brought into existence regarding
this matter are those mentioned or provided by Mr McKey, (copies of the
documents are below), Make any assumptions as to any additional facts
necessary to do so.
Form 2 Claim and Statement of Claim. Offer and acceptance. Description and
particulars of the sheep and the terms. Intention to create legal relations
(commercial dealing) consideration and delivery (performance) Jurisdiction =
district court is not founded as the monetory limit is low. Supreme court has all
jurisdiction necessary for justice in queensland. Started in Supreme Court. Look
at attached example statement of claim. SUPREME COURT OF QUEENSLAND
REGISTRY: BRISBANE
NUMBER: S XX / XX
… PLAINTIFF:
MARK McKEY
AND DEFENDANT:
ELIZABETH FARMER
STATEMENT OF CLAIM
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Filed in the Brisbane Registry on:
This claim in this proceeding is made in reliance on the following facts –
1.
At all material times:
(a)
The plaintiff is an individual capable of suing in their own name;
(b)
The plaintiff resides at 101 Research Close, Gatton in the State of Queensland.
(c)
The defendant is an individual capable of suing in their own name.
(d)
The defendant is resident at 43 Soofy Drive, Byron Bay in the State of New
South Wales.
(e)
The defendant’s Father-in-Law is Mr Bruce Zimplin (“
Mr
Zimplin
”).
2.
In or about June 20
XX, the plaintiff received a telephone call from Mr Zimplin during
which discussion of the possible purchase of a quantity of the plaintiff’s Soofy sheep by
the defendant.
3.
On 4 August 20
XX, the plaintiff, defendant and Mr Zimplin met at the plaintiff’s residence
(“
August Meeting
”).
4.
During the August Meeting, the plaintiff, defendant and Mr Zimplin discussed the methods of valuing half of the plaintiff’s Soofy sheep, being 200 Soofy sheep (“
Sheep
”), for the purpose of the defendant’s purchase.
5.
During the August Meeting, Mr Zimplin argued that a premium price would be appropriate for the value of the plaintiff’s Sheep.
Statement of ClaimLawyer Filed on behalf of the PlaintiffLawyer’s address
Form 16, RR. 22, 146Phone: Fax: 6.
In or about August 20
XX
, the plaintiff and the defendant made a contract (“
Contract
”)
which comprised an agreement:
(a)
partly in writing; and (b)
partly oral. 7.
Insofar as the Contract was in writing, it comprised: (a)
An email dated 10 August 20XX, from the defendant delivered to the plaintiff outlining a purchase price for the Sheep of $2,800,000 (“
Sale Price
”). (b)
An email and spreadsheet from the defendant delivered to the plaintiff on 16
August 20
XX that stated the valuation of the Sheep at the Sale Price. 8.
Insofar as the Contract was oral, it comprised:
(a)
A video call o11 August 20
XX, during which the plaintiff and defendant discussed
on Skype, the Sale Price.
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(b)
A telephone call on 24 August 20
XX, to the plaintiff from Mr Zimplin who, as
agent for the defendant, stated that the defendant requested the purchase of the
Sheep.
9.
On 28 August 20
XX, the plaintiff, in full satisfaction of the terms of the Contract effected
delivery to the defendant’s residence, the plaintiff’s Sheep.
(a)
20
XX
(b)
20
XX
(c)
20
XX
11.
The plaintiff caused: (a)
a reminder invoice dated 18 September 20
XX
to be mailed to the defendant’s
residence on or about that date; and
(b)
a further reminder invoice dated 18 November 20
XX
to be mailed to the
defendant’s residence on or about that date. 12.
The defendant has breached the Contract by failing to pay the Sale Price, as invoiced,
of $2,800,000.00.
The plaintiff claims the following relief:
The sum of two million eight hundred thousand dollars ($2,800,000.00) together with interest on
that amount under section 58 of the Civil Proceedings Act 2011
(Qld) from 28 August 20
XX to
the date of judgment and costs.
Signed:
Description:
NOTICE AS TO DEFENCE
Your defence must be attached to your notice of intention to defend.
NOTICE UNDER RULE 150(3)
The Plaintiff claims:
$..
...............................
$..
.............................
for interest; and
$..
...........................
for costs of issuing the claim and this statement of claim.
This proceeding ends if you pay those amounts before the time for filing your notice of intention to defend ends. If you are in default by not filing a notice of intention to defend within the time allowed, the plaintiff is entitled to claim additional costs of $.
..........
, costs of entering judgment in default.
f)
If Mrs Farmer was operating her business as Soofy Byron Bay Pty Ltd and all
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transactions were made in the name of that company, how would the court documents you are drafting change and what further information should you seek?
Full details regarding Corporation and Registered Office would need to be included –
could be available on ASIC. Costs involved in undertaking searches. Would change the
party name to the Company name – and include the ACN. Particular introductory
statement” At all material times… the defendant was a company incorporated under the
Corporations Act, registered office in …. And carried on business at… Was the
registered proprietor of land at … by lot number (x). Mrs Farmer corporate position,
plaintiff and defendant, through its director. If Mr Zimplin was also involved in the
company, need to plead that as well.
g)
Advise in detail what steps are necessary to proceed with the action against Mrs Farmer once the proceeding has commenced.
Properly serve the documents. Located in NSW so service under (SEPA), claim and
statement of claim needs to be accompanied with Form 1 as per SEPA. It will be be
served as normal, personally, and the prescribed notice (s16 SEPA Form 1). Time for
NOTID stays at 28 days s18 SEPA. Documents Provided by Mr McKey
Soofy Semen Straw Order Form
Elizabeth Farmer
43 Soofy Drive
Byron Bay NSW 2481
Date: 24 April 2018
Name: Mark McKey
Address: 101 Research Close
Gatton QLD 4343
Number of Semen Straws: 1,000
Price Payable Upon Ordering (at $50.00 per straw): $50,000
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For additional information call Elizabeth on (02) 0202 2200
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Telstra Bill
Date: 14 March 2019
For Period: 1 Aug 2018 – 1 Mar 2019
Payment Due: 1 April 2019
Mark McKey
101 Research Close
Gatton QLD 4343
07 0707 7777
Outgoing Calls
10.9.18
(02) 0202 2200
4.11.18
(02) 0202 2200
14.02.19
(02) 0202 2200
Incoming Calls
24.8.18
(02) 0202 2200
Calculations behind pricing of flock
lizzief@bigpond.com
Sent: 16 August 2018 3:05pm
To: Mark McKey
Attached is the file which shows how I have come up with my valuation of the flock.
Bruce asked me to provide these calculations to help explain the difference in values I
provided in my 10 August 2018 email. You will see the different discount rates that I
have used.
Please contact me should you have any further inquiries.
Yours faithfully,
Elizabeth.
Elizabeth Farmer
Leader in Soofy Farming in the Byron Bay Hinterland
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TAX INVOICE No. 006
Mark McKey
Animal Science Researcher
101 Research Close
Gatton QLD 4343
Delivered to
:
Elizabeth Farmer
43 Soofy Drive
Byron Bay NSW 2481
28 August 2018
Description
Quantity
Price (GST
inclusive)
Soofy Sheep
200
$2,800,000
TOTAL
$2,800,000
GST
$280,000
TERMS: NETT CASH 30 DAYS
WIZZ BANG AND CO (ABN 111 222 333) Experts in Financial Affairs TAX INVOICE No. 1105
Mark McKey
101 Research Close
Gatton QLD 4343
For: Accounting, Financial and Tax Related Advice, including Soofy semen straw
purchase, January – August 2018.
Total Payable by 14 September 2018: $2, 750.00
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QUESTION 2
Your client, Mrs Elizabeth Farmer, telephones you from Byron Bay. Mrs Farmer has
been served with the documents prepared in accordance with the instructions received
in question 1 (the matter number is now S408 of 2019).
In short, Mrs Farmer’s story is that, while looking to expand her Soofy breeding
operations she had engaged in a number of discussions with Mr Mark McKey, including
her visit in August 2018 to Mr McKey’s property in Gatton, no final agreement had been
reached.
Mrs Farmer said she was very surprised when 200 of Mr McKey’s Soofy sheep arrived
at her property on 28 August 2018 and even more surprised to find that 50 of them were
rams, despite her making it very clear to Mr McKey in her 10 August 2018 email that
rams were not to be included in the flock to be purchased. Mrs Farmer said that she
and Mr McKey have had discussions about this but no resolution has been reached. It
had got to a stage where she had told Mr McKey to come and pick his sheep up but he
said they were hers and asked for payment of $2,800,000. Mrs Farmer said her Father-
in Law, Mr Bruce Zimplin, had been very supportive and they had spoken about the
possible purchase of the sheep before they arrived. Despite having told Mr Zimplin that
she was going to go ahead with the purchase, she was still not fully committed to the
decision and needed more time to think about it. Mrs Farmer denied appointing Mr
Zimplin as her agent or asking him to contact Mr McKey regarding the purchase of the
sheep.
Mrs Farmer said she would be willing to exchange the 50 rams for 50 ewes or have the
rams returned to Mr McKey with a reduction in the sale price to $2,100,000 being
$14,000 per sheep. If this cannot be agreed to, Mrs Farmer said she will vigorously
defend Mr McKey’s action. Mrs Farmer does not operate her farm under a corporation.
(a)
Draw an appropriate pleading.
SUPREME COURT OF QUEENSLAND
REGISTRY: BRISBANE
NUMBER: S408/
XX
PLAINTIFF:
MARK McKEY
AND DEFENDANT:
ELIZABETH FARMER
Filed in the Brisbane Registry on: (date)
DEFENCE
The defendant relies on the following facts in defence of the claim:
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1.
The defendant admits the allegations in paragraphs 1, 2, 3 and 4 of the statement of
claim.
2.
In relation to paragraph 5 of the statement of claim, the defendant:
(a)
admits that Mr Zimplin made the alleged statement; but
(b)
denies all other allegations therein on the grounds that they are factually
incorrect. There was no agreement that a premium price would be the basis for
valuation of the plaintiff’s Sheep. 3.
In relation to paragraph 6 of the statement of claim, the defendant denies the allegations
therein and believes the allegations are untrue because there was no agreement as
alleged by the plaintiff.
4.
In relation to paragraph 7(a) of the statement of claim, the defendant:
(a)
admits the alleged email; but
(b)
denies all other allegations therein on the grounds that they are factually
incorrect. The alleged Sale Price was one of a number of different prices stated
in the email based on different methods of valuating the plaintiff’s Sheep.
Defence
Lawyer’s name Filed on behalf of the DefendantLawyer’s address
Form 17, R 146Phone: Fax: 5.
In relation to paragraph 7(b) of the statement of claim, the defendant:
(a)
admits the alleged email and spreadsheet; but
(b)
denies all other allegations therein on the grounds that they are factually
incorrect. The alleged Sale Price was one of a number of different prices
calculated in the spreadsheet based on different methods of valuating the
plaintiff’s Sheep. 6.
In relation to paragraph 8(a) of the statement of claim, the defendant:
(a)
admits the alleged conversation; but
(b)
denies all other allegations therein on the grounds that they are factually
incorrect. The alleged Sale Price was one of a number of different prices
discussed during the conversation but no agreement on the purchase price for
the plaintiff’s Sheep was reached; and
(c)
repeats and relies on paragraph 3 above. 7.
In relation to paragraph 8(b) of the statement of claim, the defendant
1
:
1
Students, the following sub-paragraphs are examples of four different ways the allegations in the Statement of Claim can be responded to. You wouldn’t plead all of these in response to the same paragraph of the Statement of Claim, but you might plead (a) and (d).
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(a)
cannot plead to the allegations made against another person; or
(b)
cannot plead to the allegations therein until further and better particulars are
provided; or
(c)
does not admit the allegations therein because the defendant has made inquiries
to find out whether the allegations are true or untrue and remains uncertain as to
the truth or falsity of the allegations; or
(d)
alternatively, denies all allegations therein on the grounds that they are factually
incorrect because:
i. Mr Zimplin is not an agent for the defendant; and
ii.
The defendant did not request Mr Zimplin to contact the plaintiff and
communicate agreement of a price for purchase of the plaintiff’s Sheep. 2.
In relation to paragraph 9 of the statement of claim, the defendant:
(a)
admits the delivery by the plaintiff of the Sheep on 28 August 20
XX; but
(b)
denies all other allegations therein on the grounds that they are factually
incorrect because there was no agreement as alleged by the plaintiff in
paragraph 6 of the statement of claim. 3.
In relation to paragraphs 10(a), (b) and (c) of the statement of claim, the defendant:
(a)
admits the plaintiff made the alleged requests; but
(b)
denies all other allegations therein on the grounds that they are factually
incorrect because there was no agreement as alleged by the plaintiff in
paragraph 6 of the statement of claim, therefore no obligation to pay the amount
requested. 4.
In relation to paragraphs 11(a) and (b) of the statement of claim, the defendant:
(a)
admits receiving the alleged invoices; but
(b)
denies all other allegations therein on the grounds that they are factually
incorrect because there was no agreement as alleged by the plaintiff in
paragraph 6 of the statement of claim, therefore no obligation to pay the amount
requested. 5.
In relation to paragraph 12 of the statement of claim, the defendant:
(a)
admits the allegation that payment to the plaintiff has not been made; and
(b)
denies all other allegations therein on the grounds that they are factually
incorrect because there was no agreement as alleged by the plaintiff in
paragraph 6 of the statement of claim, therefore no obligation to pay the amount
requested. Signed:
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Description:Solicitor for the Defendant [This pleading was settled by (name) of Counsel].
NOTICE AS TO REPLY (r 164)
To the Plaintiff:You have 14 days within which to file and serve a reply to this defence. If you do not do so, you may be prevented from adducing evidence in relation to allegations of fact made in this defence.
(b)
You have another meeting with your client, Mrs Farmer, to review the
pleadings you have drafted. After reading it, she tells you that she has
sustained a number of costs as a result of the delivery of Mr McKey’s sheep.
These include $4,500 for additional feed, $5,600 for veterinarian care, $3,700
for additional water and $7,400 in mustering fees to move the sheep between
paddocks.
How would your pleadings change if you were to seek recovery of these costs
for Mrs Farmer?
COUNTERCLAIM
This counterclaim is made by the defendant against the plaintiff.
This counterclaim is made in reliance upon the following facts:
1.The defendant is the occupier of the property situated at 43 Soofy Drive in the State of New
South Wales (“
Property
”).
2.The defendant conducts business at the Property as a breeder of Soofy sheep. 3.On 28 August 20
XX
the plaintiff delivered 200 Soofy sheep (“
Sheep
”) at the Property.
4.The Sheep were delivered without the request or consent of the defendant.
5.
The defendant requested the removal of the Sheep by the plaintiff.
6.
The plaintiff has failed or refuses to remove the Sheep from the Property and is
therefore trespassing on the Property.
7.As a result of the trespass on the Property by the plaintiff as set out above the defendant was
required to incur expense in caring for the Sheep, including the following:
Feed $4,500
Veterinarian care $5,600
Water $3,700 Mustering fees $7,400
Total
$21,200
The defendant claims the following relief:
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(a)
Damages in trespass in in the amount of TWENTY-ONE THOUSAND TWO HUNDRED
DOLLARS
($21,200.00);
(b)
Interest on that amount from 28 August 20
XX.to date of judgment pursuant to section 58
of the Civil Proceedings Act 2011 (Qld); and
(c)
Costs.
Signed:
Description:Solicitor for the Defendant [This pleading was settled by (name) of Counsel].
NOTICE AS TO REPLY AND ANSWER (rr 164 and 180)
To the Plaintiff:You have 14 days within which to file and serve an answer to this counterclaim. If
you do not do so, Rule 166 provides that allegations of fact in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by you in a pleading.
WEEK 8 TUTORIAL: Pleadings: Summary Judgment, Court Applications, Affidavits [Compulsory question from 2007 examination with dates in the pleadings
changed]
QUESTION 1
Your firm has been retained to act for Acmee Pty Ltd, a wholesale company in Brisbane
which imports prefabricated steel building components from Asian suppliers – most
notably, Korea Ferrous Metals Exports (KFME), a company operating from the Republic
of Korea. KFME is the major Asian supplier to Acmee and although Acmee also imports
some raw and processed steel from Europe, KFME supplies by far the highest quality
product at the best price. Tom Hartnell, a managing director of Acmee attended at your
offices recently and as a result of interviewing this client you assigned a first year
solicitor to draft a Statement of Claim in relation to the matter. The facts of the matter
are relatively straight forward. On 10 March 2019, Acmee held a promotional evening
to which they invited most of their regular clients and a number of visiting executives
from KFME. Catering for the evening was to be provided by Heavenly Platters, a local
catering business run by a young married couple, (Dan and Deanna Springfield) who
have only been trading for 12 months and are gradually growing and developing their
business to determine whether it will be viable for the long term before deciding to
incorporate. Mr Hartnell instructs that the order was placed over the telephone by his personal
assistant, Sarah-Jane Kanyne. She had heard that Heavenly Platters made excellent
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cheese platters. The order included 10 such platters at an advertised price of $32.50
each (which Sarah-Jane thought was astonishingly cheap at the time). The total cost of
the catering order, including food and service, was to be $325.00. When the invoice for
the catering arrived the price charged for the platters was listed as $132.50 each. Mr
Hartnell is quite angry about this as he believes that the Springfields have deliberately
tried to include an excess charge in the invoice in the hope that it will slip past the
Acmee accounting department. He also believes that Heavenly Platters never really
intends to supply the platters at this price and is being deliberately deceptive and
misleading in its advertising.
On the night of the promotional event, the cheese platters were actually a big hit and
were all consumed very quickly by the guests. Unfortunately everyone who ate from
them became violently ill later that evening and many people visited local GP’s
(including the visiting Korean delegation from KFME) and were subsequently diagnosed
with food poisoning. Sarah-Jane later reported that the caterers had delivered the
platters at the same time as some raw meat to be used for preparing steak tartar, and
that there appeared to be meat juices dripping onto the cheese. When she pointed this
out, the catering staff had simply wiped the visible meat juices off with damp paper
towels. As a result of this culinary disaster, the KFME executives became infuriated
that their trip was marred by what they saw as a serious insult by Acmee in using such
cheap and poor quality catering services. They have informed Mr Hartnell that although
they will continue to deal with Acmee in the future, KFME will not be inviting Acmee to
tender for the purchase of a major stock of miscellaneous steel products that has been
sitting in their warehouse without a buyer for the past 2 years. The stock was the
excess product from a wide variety of export orders over the past decade and KFME
wanted to sell it off quickly by tender to free up space in their warehouse. Acmee was
confident that they would be able to successfully tender for the stock and already had a
domestic buyer (Quick Deal Ltd) if they obtained it. Hartnell instructs that Acmee
expected to make a profit of $280,000 on this transaction with the domestic client.
The first year solicitor has submitted the following Statement of Claim for your perusal.
(a)
Advise the first year solicitor on the quality of the extract of the pleading detailed
below and whether any amendments or additions need to be made to it.
(b)
List any other information or documents that you would need to obtain from your
client in order to draft an adequate pleading.
Need to find a copy of the tender. Need to find out further information about the
illness/and who was make ill which would include medical records. Any witnesses?
Waitresses etc. Copy of any Contracts. STATEMENT OF CLAIM wrong this goes below where the parties are
DISTRICT COURT OF QUEENSLAND
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REGISTRY: Brisbane
NUMBER: 230/2019 wrong need to
be D and the number will not be provided until filed r964
Plaintiff
:
Acmee Proprietary Limited ACN 123456
AND
Defendant
:
Heavenly Platters – this is a business name? r89 (start in registered
business name) r90 (unregistered business name) r91 Defendant to draft and file
NOITD in own name and provide list of other people who operate under that
business name r92(2) – obligation on plaintiff to take all reasonable steps to find
out who did business under that name
This claim in this proceeding is made in reliance on the following facts
:
1. The plaintiff is, and at all material times was, a duly incorporated company.
Incorporated under the corporations act, entitled to sue under that name.
Maybe put the place of registered address for company. 2. The defendant trades under the business name of Heavenly Platters.
3. On or about 18
th
January 2019, the plaintiff orally agreed to purchase catering
services and products from the defendant, for the provision of food and beverages
for a corporate sponsorship event involving 200 invited guests.
4. The defendant agreed to provide this catering service and to charge in accordance
with the standard corporate menu which was displayed in the defendant’s
advertisement on p.882 of the Brisbane Yellow Pages 2018.
Missing footer – what document is, who filed on behalf, form number and rules
and solicitors details on the right. 5. Within the advertisement described in paragraph 4 of this Statement of Claim,
“Premium Cheese Platters” (suitable to serve 20 people) were listed at a price of
$32.50 each.
6. 10 of these Premium Cheese Platters as described were included in a telephone
order placed with the defendant by the plaintiff on or about 18
th
January 2019.
7. Invoice KB #214 received by the plaintiff on 17
th
March 2019, lists 10 such platters as
having been provided at a cost of $132.50 each for a total of $1,325.
8. The plaintiff claims relief from payment for the Premium Cheese platters on the
grounds that the defendant overcharged for the goods. Have to avoid using broad
statements, ambiguity, not enough particulars what ‘overcharged’ is. Improved
by stating subpara by higher that an amount agreed to, higher than price in
corporate menu. Not more than one allegation per paragraph.
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9. The plaintiff claims relief from payment for the Premium Cheese Platters on the
grounds that they were not of merchantable quality pursuant to the Sale of Goods
Act 1896 (Qld)
.
Breach of statutory act, but needs to state the specific section
of the act needs to be pleaded. 9.
The defendant was negligent in the preparation of the platters. R149(2)- cannot
plead a conclusion of law, only if you provide the necessary material facts. 10.
The Premium Cheese Platters supplied by the defendant were responsible for a
gastro-intestinal illness suffered by numerous guests at a promotional event held on
the evening of 10
th
March 2019. Not specific enough in what the illness is – need
further and better particulars. Numerous guests – how many, which guests?
R157
11.
The plaintiff has been involved in regular trade with Korea Ferrous Metals
Exports since 2005. 12.
The plaintiff expected to be able to successfully tender for the purchase of a
shipment of steel products from Korea Ferrous Metals Exports by July of 2019.
13.
Executives of Korea Ferrous Metals Exports were among those who fell ill as a
result of consuming the cheese and as a result, Korea Ferrous Metals Exports has
denied the plaintiff the opportunity to tender for the steel product. Fully identify what
the tender is. 14.
The plaintiff had negotiated with Quick Deal Ltd who had agreed to purchase the
tender goods described in paragraph 12 of this Statement of Claim for $280,000. If
seeking damages for loss of tender – exact nature and amount of damages r
115(4). Damages must be shown how they were assessed so as to not take D
by surprise. No prayer for relief; which is required. Not numbered paragraph to surmise what they are claiming, total amount plus interest in cost. QUESTION 2
Read the following statement taken by your partner from your client Patsy. Patsy has
been sued for damages for breach of a restraint of trade clause and breach of
confidence. You have now been instructed to apply for summary judgment on Patsy’s
behalf.
Outline the elements of each cause of action (you may need to do some research to
remind yourself of the law).
Breach of confidence; Telephonic communicators International v Motor Solutions
Australia
; 1. Information must have necessary quality of confidence. 2. Info must
have been imparted circumstances identifying obligation of confidence. 3.
Unauthorised use of that information to the detriment of the person claiming
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confidence Breach of contract (restraint of trade) Maggbury Pty Ltd v Hafele Australia
presumption that restraints are bad, unless proved otherwise. Any restraint
beyond reasonable, must be struck down, even if no evidence of no harm to
public. More likely to uphold sale of business/than employee. Find and read the relevant UCPR rules about a defendant seeking summary judgment. R293 After doing NOID, if court satisfied, P has no prospect of success, and there is no
real need for a trial. What facts can be established by affidavit to show, no real
prospect. Would also seek in alternative, statement of claim be struck out. Outline the things she must establish to the judge’s satisfaction to obtain such an order.
Breach of confidence – material facts could not have been pleaded. Test for no real
prospect – real as opposed to fanciful success. Hearsay – affidavit are needed from the
witness who have the relevant facts within their own knowledge and belief r295(2)
- rely
on affidavit containing hearsay in summary judgement. Generally, try to avoid having
potential witnesses swearing to things in interlocutory applications, to not give other
side ammunition. In a finely balanced case, affidavit containing direct evidence, might
be more persuasive. For summary judgements, 8 days notice r296
. Draft an application and an affidavit by Patsy addressing relevant issues.
Look at examples printed Memo to file
Client statement
I am Patsy Malone
I am a medical Doctor. Trained at University of Perth. Graduated 2003. I am a specialist
Pathologist. I am now primarily a researcher.
I am employed in the Medical School at Herston University (HU). I am employed
primarily to conduct research, and to supervise doctoral students. I am conducting
research into a new vaccination for Hepatitis C. I have been working at HU for nearly
2 years. I was employed at the beginning of First Semester 2014. The actual date I was
employed from is 22 January 2014.
Prior to that I completed my training at St Teresa’s Women’s Hospital in Perth. I then
moved to Brisbane in 2011 and worked at Prince Harry Hospital. I moved there because
I had got interested in vaccination production, and I had the opportunity to move into full
time research at PHH. Since PHH is a teaching hospital, I also began to supervise the
research of PhD students. I find I enjoy teaching. I was involved in investigations of the
spread, development and treatment of HIV.
After PHH I worked for 8 months in 2012 (14 January 2013 to 25 August 2013) at a
private Research and Development Drug company - Bentones and Hedges Pty Ltd
(BH). They are based in Sydney, and are associated with some international drug
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companies. That means they have access to good levels of research funding. At BH I
was involved primarily in setting up some new research (for them) into use of viral
carriers for gene therapy. We really did not get much research done, since we were
setting up a new laboratory, new equipment, all new staff etc here in Brisbane.
I left PHH for this job because I was involved in a messy divorce and the pressure of
the hospital was too much. I thought that it would be less pressure in the private
research field – but I was wrong! I also thought I might later be able to move to the
company’s head office in Sydney. My ex-spouse moved to Sydney with our children. I
really miss my kids Kaitlyn (age 7) and Patrick (age 5).
I found that I did not enjoy the pressures of the corporate world, and I was not able to
pursue the lines of research I considered most interesting, and most promising. I was employed at BH on the understanding that it was a 6 months trial. They wanted to
keep me on, but I asked for a couple of months to think about it. Eventually I resigned.
Under my contract of employment with BH there was a clause that said I could not work
in competition with them, or set up my own research company, for 5 years within
Australia. I did not take that seriously. Anyway, I finished up there in August 2013.
When I left my job at the PHH, my friend David Meganote, another Professor at HU,
had approached me about joining HU. He encouraged me to go into research full-time.
David had said he had a good chance of setting up a well-funded research project in my
specialty area. When I decided after quitting BH that I wanted to get back into teaching
and research, I contacted David, who had meantime been appointed Dean of the
Medical School at HU. As it happened, he was able to offer me a position and I started
work at HU.
I lecture the undergraduates, and supervise their basic laboratory work. I spend more
time, however, working with the post-graduate students. I have team of 3 PhD students,
and a varying group of PhDs and students on specialty rotations who help out. We are
investigating several aspects of Hepatitis infection and treatment. Six months ago, I
began a new line of inquiry which may lead to a new, cheap and effective vaccine for
Hepatitis C. With the Dean, I negotiated a large private research grant from a drug
manufacturing company, Boodles Ltd - a company based in Canada, but with large
interests in the Asia-Pacific region. We had some rapid breakthroughs, and I spoke
about them at a conference in Sydney in August. A couple of people from BH were
there - my superior when I worked there, Jack Horner and a lady doctor, Maria
Contrarius.
Now my former employer BH is threatening to sue me. The company is trying to stop
my research. I think they are applying pressure because they want a cut. If we succeed
in developing this vaccine, it will produce a huge profit.
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HU is presently negotiating a long-term arrangement with Boodles Ltd. Under the terms
of the research grant, they have first rights to the fruits of our research, but they have to
negotiate a new deal to obtain the patent rights - making some payments to HU and to
me. My friend David is a wimp. He is afraid of the uni getting into legal difficulties. He is
trying to convince me to drop the research! I am still lecturing undergrads, and doing
some lab supervision for them.
The relevant contract clause provides:
On termination of this employment, the doctor agrees not to work (whether as
employee, contractor or principal) with any company, trust or partnership which is
engaged in medical therapies research, for a period of 5 years within Australia.
WEEK 9 TUTORIAL: Disposition without trial (default
judgment; summary judgment)
PART 1
A Ltd is suing B Ltd in the Brisbane registry of the Supreme Court for recovery of
$1,400,000 owing under a contract for the sale of a prime mover truck. A claim was filed
and served in Brisbane on 3/3/19 and to date A Ltd has not heard from the defendant.
Advise A Ltd.
Consider in particular:
a)
Can A Ltd apply for default judgment?
Default judgement arises where a defendant has not filed a NOITD (as per r137) within
28 days R281
. Service of the claim must be proved r282 – establish this through
affidavit sworn by person who served the originating process. R283
- p may file request
for judgment, plus interest and costs. b)
What documents are necessary for the application?
Documents necessary = Form 25 (request for default judgement) sale contract, not
really an argument over the amount so it’s a liquidated claim. If unliquidated, applying
r284. Also a Form 46 affidavit of service and affidavit of debt (required for liquidated
debt claims) also a default judgement form 26 – to be signed/sealed by registrar. c)
Will it be necessary to attend a court hearing?
Documents can be filed and registrar can make judgement. No personal attendance
necessary. R967 and 969 r970
d)
What are the options available for claiming interest?
R283 – contract for sale specified rate of interest, that would be calculable predating the
breach. Or if not, then claim under s58 Civil Proceeding Act, essentially the court to
decide as per the practice direction. Or you can abandon the interest all together. Or if
you think reasonable rate is higher than practice direction, but has to be decided by the
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court, not the registrar. Registrar may refer to court – and you would appear in court
and argue for a higher rate. R283(9)
– if you didn’t specifically ask for interest from
earlier date, you only get interest from the date you issue your claim. PART 2
Assume a default judgment was entered on 4/4/19 in favour of A Ltd and it has now
come to the director of B Ltd’s attention that the affidavit of service filed in support of the
application was not signed by the deponent on each page. B Ltd has just sent a letter
advising of its intention to challenge the default judgment and seek costs.
Advise A Ltd in relation to the likelihood that the judgment will be set aside.
R290 – Discretionary power to set aside or amend a default judgement and enforce it.
Judge has wide power. Traditionally three things need to be satisfied of; 1. Good
explanation of failure to file NOITD. Meet with client and find out the reasons why there
has been no NOITD filed? Slackness is not appropriate. 2. Provided an explanation of
any delay since default judgement entered and the bringing of application to set aside.
Eg learnt about it six months later seek set aside – need a damn good reason. 3.
Whether there is a credible defence. Normally draw up the defence and produce that at
the hearing. Need to be a credible defence. Drafting it and providing it is important
because Judge can see the pleading that’s going to be filed. Cook v DA Manufacturing; CB Richards Ellis Pty Ltd v Wingate Properties 3 other factures – a) defendants conduct in the action, before and after judgement. If
told other side “I don’t care if you’re gunna sue me” – court will take that conduct into
account. B) good faith of Defendant c) if the P would be irreparably prejudiced which
cannot be adequately compensated by a suitable award of costs.
Affidavit is not actually signed on each page by the deponent. Could be argued
irregularity – not in strict compliance with UCPR. If entered irregularity, Defendant has
absolute right to have default judgement set aside. Can’t guarantee that will happen.
May argue page not signed in compliance, however all material facts and evidence in
affidavit is on pages that have been signed. PART 3
Now assume that B Ltd files a defence and counterclaim on 14/4/19 claiming damages
for interference to business caused by the delivery of the prime mover, which it alleges
was never contracted for.
Can B Ltd obtain early judgment?
R292 – counterclaim makes the defendant taking the role of the plaintiff.
Australian Investment Corp v Markway Holdings. Seek default judgement on counterclaim. Discontinuance happens when you have settlement agreement.
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WEEK 10 TUTORIAL: Disposition without trial (alternative
dispute resolution)
Refer back to the facts of the Mandy Muscles Week 3 Tutorial and Soofy Sheep Week 7
Tutorial. Both matters are to be referred to an alternative dispute resolution process and
your clients have sought your advice as to the most appropriate process in each case.
For each matter, prepare an advice and an agenda for a preliminary conference with
the other side.
Mediation and Case Appraisal
Legal issue should go to Case Appraisal rr334 -45
Factual issue should go to Mediation rr323-33
Case appraisal versus Trial
need for early and realistic view on trial. Eg one might be unrealistic
Encourages the parties to confront their position, such as unrealistic position
Hear the other side – help identify the dispute; help with forms to admit
Offers lawyers/litigants a confidential and frank assessment of the strength of the case. Mediation versus Trial
8 criteria. Prospect of success, length of trial, willingness to participate, offer to share ADR costs, role of 3
rd
party (mediator might be able to organise a compromise), stage of action (application made early more likely to be referred), risks of litigation (like going to appeal), success rate of mediation (high success rate). Possibly been history of cooperation. Limited number of disputants eg 2 parties vs 10. Limited number of disputed issues. Only moderate to low level of hostility between parties. Can conduct mediation in different rooms for high hostility if need be. External pressures such as loss of business. When not to mediate?
When fraud has been alleged. Allegations of criminal activities. In civil jurisdiction, under
the corps act – need to consider how difficult to have resolution when allegation of
illegal activity. Large power imbalance. Mandy Muscles – Personal Injury – already gone through PIPA which requires
Mediation
If the mediation has gone as a proper mediation, but didn’t work. Down the track,
negligence matter, factual disputes most likely, thus down the track mediation might be
possible. May be situation (not enough facts) but case appraisal might be able to
facilitate for legal issues such as liability of car park. McKey v Farmer – legal issue if binding contract (agency) case appraisal If case appraisal said yes, then maybe onto mediation for the issue of costs.
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Agenda items Timing – if client/other working during the day
The venue – a neutral ground; often at mediators premise
Duration – you don’t want this running for days or a week – a defined timeframe Procedural rules - mediators agreement what will
WEEK 11 TUTORIAL: Disposition without trial (settlement
and discontinuance)
QUESTION 1
Trustees Pty Ltd is in the business of acting as trustees for deceased estates. Trustees
Pty Ltd sought to expand its business into the lucrative market of trading trusts. To this
end Trustees Pty Ltd sought general legal advice from your client Mudraker solicitors
concerning the expansion. The advice was given on 1/1/2016. The trust venture failed
and by 1/7/2016 Trustees Pty Ltd had become personally liable for losses that
exceeded the value of the trust property.
On 1/1/2017 Trustees Pty Ltd issued a claim in which it seeks to recover $1.6 million
damages for negligent advice causing financial loss from your client Mudraker solicitors
on the basis that the solicitors failed to advise that Trustee Pty Ltd should not accept the
office of trustee without excluding its personal liability for losses arising in the course of
carrying out the trust.
Mudraker solicitors denied liability and in the alternative argue that Trustees Pty Ltd is
contributorily negligent because:
(i)
The general manager of Trustees Pty Ltd has considerable business acumen
and knowledge in business finance;
(ii)
Trustees Pty Ltd is a member of a corporate group which employed senior staff
with considerable, relevant business experience; and
(iii)
Trustees Pty Ltd was anxious to break into the business of acting as trustee of
trading trusts.
Your client instructed you that it will be prepared to pay $900,000 to settle the
proceedings.
(a)
Draw an appropriate offer to settle. (Imagine it is drawn and dated 1/1/2017 to be
served on the same day.)
SUPREME COURT OF QUEENSLAND
REGISTRY: BRISBANE
NUMBER: S469 of 20
XX
Plaintiff: TRUSTEES PTY LTD (ACN
XX)
AND:
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Defendant: MUDRAKER SOLICITORS
OFFER TO SETTLE
1.
The defendant offers to settle this claim on the following basis:
(a)
Payment by the defendant to the plaintiff of the sum of $900,000.
(b)
The defendant will pay the plaintiff’s costs on the standard basis to the date of this offer.
(c)
Acceptance of this offer is in full satisfaction of all of the claims and rights that the plaintiff has against the defendant or may have had against the defendant in connection with the claim of the plaintiff.
2.
This offer is open for acceptance for fourteen days after the day of service of this
offer on the plaintiff.
3.
This offer is made in accordance with Chapter 9 Part 5 of the Uniform Civil Procedure Rules.
Dated 1 January 20
XX.
....................................................
Signature
Solicitors for the defendant
Offer must be open for a minimum of 14 days after the day of service on Plaintiff
r355. Open for acceptance and may not be withdrawn within that period without the
courts leave. R353 party to proceeding may serve an offer 1 or more of the claims in
the proceeding on the conditions specified in the offer. Party may serve more than 1
offer. Para 3 must be put in r 353(3).
Offer is without prejudice r356
. Acceptance
must be in a written notice of acceptance r358 Form 38
. R358(2) – does not lapse
with a counter offer. (b)
Imagine the offer to settle was not accepted by Trustees Pty Ltd and the case
was listed for trial. Judge Payne on 1/1/2019 found in favour of the plaintiff
(Trustees Pty Ltd) and assessed total damages in the sum of $1,000,000, but
found Trustees Pty Ltd 10% contributory negligent. The award of damages was
hence reduced to $900,000. Judge Payne also allowed s 58 Civil Proceedings
Act 2011
interest on the damages at the rate of 10% per annum from 1/7/2016.
What order for costs should be made?
Cost determined by who made the offer.
R360(offer by P),361(offer by
D),362(interest). 1. Advice given by client 1Jan2016
2.
Loss suffered by P on 1 july2016
3.
Litigation commenced on 1 Jan 2017
4.
Defendant offer to settle for $900,000 on 1 Jan 2017
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5.
1 Jan 2019 judgement for 1m less 10% contributory = 900k. Comparing offer and quantified damages, contributory negligence is taken into account.
R362
specifically excludes any part of the judgement representing interest from the
date of the offer to settle, which clearly implies interest to that date applies. So 1 july
2016, to 1 jan 2017. = six months interest. So 6 months of 10% x 900K. =$45k.
compare 945K with settlement offer. R361 offer made by D, so 945K is more
favourable than the offer that was not accepted thus, r361
will not apply. So usual cost
order will be expected – pay costs on the standard basis. Had the offer been better, ie
1m. Result would have been the P pays the D’s costs on the standard basis after the
day of service for the offer to settle and the defendant pays the Plaintiff costs on the
standard basis, up to and including the day of the offer unless someone can show
something else is required. Rules will penalise the party who rejects an offer that would
have been to their benefit. (c)
Assume that an offer was made by the plaintiff on 1/7/2017 in the sum of
$1,000,000. This was not accepted and the same judgment was handed down.
What order for costs would you expect now?
Liability arose 1 juy 2016, claim on 1 jan 2017 offer 1 july 2017 judgement 1 jan 2019. 1
july 2016, to 1 july 2017 – 12 months. So 900k + 10% = 990m. r360
(P who made offer)
– compared with settlement offer, 990K which is less than the offer of 1m. so normal
costs order will apply. N.B. Disregard whether the day of the week is a Saturday, Sunday or public holiday and
focus solely on the dates.
QUESTION 2
Nancy Nervous wishes to discontinue her action in each of the following
circumstances. Discuss the appropriate procedure. (a)
Nancy commenced proceedings against Dan Defendant in the Supreme Court
for damages for personal injury. The matter has been allocated a trial date
approximately one month away.
Discontinuance by plaintiff. Leave is required as the matter has been allocated a trial
date. R304(2)
– consent of the defendant. r307(2) pay Dan’s cost. (b)
Nancy and Gordon commenced proceedings in the Supreme Court against
David Defendant claiming damages for breach of contract of sale by them to
David of a unit in a high rise at the Gold Coast. The matter has been allocated a
trial date approximately one month away. Gordon does not consent to any
discontinuance of the proceedings by Nancy.
Can only discontinue with the court leave or the defendant consent. R304
– no
indication what David thinks. Unlikely court will grant leave. Nancy is a necessary party
it will not allow her to discontinue, but if not wish to be a plaintiff, court can disjoin her as
a plaintiff, and add her as a defendant. Cannot be forced to litigate against his or her
will. Will then be bound by the decision of the court. They still have an opportunity to
commence an application on the grounds. (c)
Nancy and Gordon commenced proceedings in the Supreme Court claiming
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damages against Sam Defendant for conversion of certain property in respect of
which they were uncertain at the time of commencement of proceedings as to
which of them had title. They have claimed in the alternative damages for their
loss. Sam has just delivered his defence. It has become clear in the meantime
that Gordon has in fact the title to the goods and Nancy wishes to discontinue.
Court will likely give leave. King v Sunday Pictoral Newspapers. As P’s claim in
alternative, there is nothing on the facts to prevent her withdrawing her claim. She is not
a necessary party and have no legal interest in the case. Best idea for her to withdraw
discontinuance will probably be consented, but the court would give leave. WEEK 12 TUTORIAL: Appeals
[adapted past examination question]
You have recently acted on behalf of your client, Billy Bob Boffin, in a civil matter in the
District Court of Queensland, Brisbane. Despite all the hard work you did on behalf of
Billy Bob, Monogram J found for the defendant, Waterworks Inc. The judge found that
the defendant had taken reasonable care for your client’s safety when you believe, on
the facts, that this is wrong. You believe that a finding of fact that a man failed to act as
a reasonable man would, is not in the same logical realm as an inference that
something actually happened or was done. You believe the evaluation of conduct in
terms of reasonableness is a value judgment upon facts rather than an inference of a
fact.
The partner in the Litigation Practice Group of the firm you work at gives you the
responsibility of advising the client in relation to an appeal of the matter. 1. Prepare a short memo outlining the steps that must be taken to appeal the
decision as a rehearing. Ensure you discuss briefly the important aspects of
each step up to, and including, the final step before the Court of Appeal hears
the appeal. Refer to the Uniform Civil Procedure Rules 1999 (Qld), Practice
Directions and any authority upon which you rely in executing each step of
the appeal process successfully. Chapter 18 UCPR 744-781
. Governed by Supreme Court Practice Direction No 3 of
2013. Appeal from District Court – to establish to appeal, need to look at 118(2) District
Court Qld Act by way of re-hearing. Court will consider the trial transcript and find it own
decision. Only in special circumstances and with leave can new evidence be
introduced. Differentiate finding of fact and inference on the basis of the facts. Based on
De Costa v Cockburn Salvage Trading -Judges advantage in hearing evidence at trial
because the judge in CoA recognise Trial judge in much better position to determine on
the facts. In that case, 5 judges decided the appeal. 4 based the decision if the correct
inference based on the facts. 5
th
based on the value judgement made on the based of
the facts. All accepted findings of fact of trial judge – must be satisfied that the
conclusion was wrong. When comes to errors of facts or inferences drawn, note
attention what it can be (very close) Negligence actions, the court will be given facts
and upon those will determine if been a breach. That inference – draw conclusion
based on facts, could be called an inference drawn. And the judge may have erred.
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Notice of Appeal Form 64 R747(1) – filed in Supreme Court Registry and copy of notice
will be filed in District Court registry. In the notice the following need to be included as
per r747- whether whole or part appeal and the grounds of appeal. Notice must be filed within 28 days of primary decision r748(a) served on respondant
as soon as possible 748(b). Commencing an appeal does not stay enforcement of the
principle judgement. So you must file an application for stay of enforcement in either
Court of Appeal or district court r761
. Address relevant considerations when balancing
competing interests asia pacfic international v peel valley mushrooms - captures three
major things court will need to consider ie – client (appealing) has good arguable case,
as court not going to stay enforcement of judgement if it is pretty obvious if client has no
chance of appealing it, also whether client will be disadvantaged if no stay granted and
counter arguments from respondent as they will argue their disadvantage if stay
ordered. Important to understand court doesn’t automatically stay an enforcement, even
when you apply, its not guaranteed. Outline of Argument
File & serve written argument PD 3 of 2013 [41] and written outline of argument and
draft index to appeal record book within 28 days of commencing appeal PD 3 of 2013
[39 (a)]. The format will need to comply with para [14] and [15]. No more than 10 pages,
must be concisely stated, by whom & on whose behalf it was prepared, the grounds of
appeal and supported by authority and evidence, here as inference of fact error – set
out basis to that contention with relevance to the evidence, date of lodgement in
registry, lodge 5 copies with registry, serve 1 copy on each party, identify any errors said
to have been made by the district court judge who’s order is subject to appeal and the
principle for that. Appeal Record Book
Arrange for an appeal Record Book to be prepared rr758-759. Electronic copy in
searchable PDF format must also be prepared. Para [21] PD. Also need agreement on
contents of the concise index of materials to be included para [42]. Subject to this
agreement, must file appeal record book index within 10 weeks. Index must only list
material only relevant to determination of appeal. If parties cannot agree, the registrar
will make a decision. In relation to starting appeal. 28 days to file & then 28 days after that, need to have
outline of argument and draft index to appeal record book. 10 weeks after that, file
concise index and then 12 weeks after appeal started, lodge at registry and serve on all
parties the appeal record book. Para 39(e). ARB must include all material necessary to
decide issues. Para 44(d) – ARB must comply with court of appeal guidelines for preparation of civil
appeal record books – link to website. 44(e) – contents of the ARB; reasons for judgement, copy of order, relevant transcript,
exhibit’s, reports, other relevant materials. List of authorities – ‘a list’
must have all
cases and legislative provisions the party definitely intends to rely at hearing. ‘b list’
might refer, but party will not rely on Para 22(1). Further, lodging and serve a copy of
the list of authorities at the time of the outline of argument (28 days after commencing
appeal). Para 22(3) – no later than 2 clear days prior to hearing, must lodge 3 copies of
each in a list, but not part b list. Para 22(4) – no later than 2 days before hearing, 3
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copies of each auth and legis in their part a list, not included in the appellate/applicants
copies. 2.
What would you do if you are able to negotiate resolution of the dispute with the solicitors for Waterworks Inc?
Para 51- applicant may finalise civil proceeding, (starting appeal is like an action on foot
and like primary action, it could have been settled and appeal can be settled before
court room). Prior to appeal date – notice of dismissal. Form 68 – Memorandum of
agreement to dismissal of appeal. Must be signed
by all parties to appeal. Note –
discontinuance , consent of all parties, same situation here. Under the rules?? – r762
talks about dismissing the appeal. WEEK 13 TUTORIAL: Enforcement
[adapted past examination questions. Disregard whether the day of the week is a
Saturday, Sunday or public holiday and focus solely on the dates.
]
QUESTION 1
Over lunch at the Marriott Hotel, Brisbane, Xavier Fox negotiated and executed a
contract for the purchase of fireworks from Leonard Tenor, who manufactures the
fireworks at his home in Byron Bay, NSW. Tenor arrived at the Marriott in a very
expensive XJ-Jaguar car that he owned. Fox had been engaged by the Brisbane City
Council to provide the fireworks for the Riverfire Festival in Brisbane on 2 June 2018.
The fireworks were delivered in accordance with the contract but on the night of the
Festival, all of the fireworks went off with a fizz, not a bang, accompanied by a few
sparks that went no higher than 1 metre from the ground. Fox was furious.
On 18 November 2018, Fox commenced an action in the Brisbane registry of the
Supreme Court of Queensland against Tenor, for the breach of contract that occurred
on 2 June 2018, seeking $800,000 in damages. Having obtained judgment for $770,000 plus 10% per annum interest, advise on
how Fox might best enforce the money order and briefly state what Fox would
need to do to enable such enforcement?
Warrants – s90 CPA. Land in NSW – the ability to enforce the Qld judgement in NSW
(interstate judgement enforcements). Under SEPA Act made it easier to enforce
judgement interstate. 104-109.
s105 upon sealment of judgement, has same effect as
in original state. Capable of being enforced in or by a court of a state, in which it is
registered. Enforce once you lodge in court of NSW. If you got a warrant to enforce the
judgement debt it can be executed in NSW. Procedural aspect – want to enforce judgement or money order. Note needs to be filed
r661(4) – until filed cannot be enforced. Would have provided judge with draft of
judgement, so all you do is going to registry for sealed copy. If separate judgement
because not one handed up or terms different, then you could type that up, prepare
judgement and take it into the registry, signed and sealed and you can then enforce the
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judgement. Need to have it filed to have enforcement hearings r808. Enforcement
creditor will swear the amount in Form 74 – statement supporting for application
enforcement warrant. Assets – Jag and Home in Byron. Search to confirm ownership. Check exempt property
(bankruptcy regulations/act). Vehicle Is not exempt given it’s value. Next – can the
judgement be enforced – up to 12 years s10(4) limitations of actions act. Less than 6
years, no need to seek leave of court to enforce it. R799(1).
What might be a step
before you start heading into enforcement of proceedings. Send a letter requesting
payment – letter of demand, to the judgement debtor, asking for payment. Payment
needs to be made by this date, otherwise my client will consider enforcement
proceedings, the cost to be incurred by you. As you already know what the assets are,
the enforcement hearing is not necessary to identify the assets. Application for warrant
does not require such hearing r817 . r808 if you do need it. Obtain a warrant – so
what sort of warrant? This would be seizer and sale of property of both car and real
estate r828
– Form 75(enforcement warrant). If there was an enforcement hearing
needed, a warrant can be ordered at the hearing r814. R828(1)- Court may issue to seize/sell of all real/personal property, enforcement debtor
has legal interest in. One thing might consider, the fact there are two assets, and that the enforcement officer
will determine the order of sale. R829 QUESTION 2
Mr Adjudicator is a stipendiary magistrate working in that capacity in the Koble
Magistrates Court in rural Queensland. He is suing both Scribe Pty Ltd, the publishers
of the Koble Daily News
(a local newspaper), and Ms Reater Skeater (a journalist
employed by the publishers) for defamation. On 1 May 2017, the paper published an
article, written by Ms Skeater, which alleged that the reason that violent crimes
(committed by young people) appeared to be more prevalent in the Koble region lately,
was that Mr Adjudicator was far too lenient in the sentencing of offenders. In the
material article, which was titled “Spare the Rod and Spoil the Child”, claims were made
that Mr Adjudicator was reluctant to punish offenders properly, that he was out of touch
with the community and that his lack of competence was a major cause of the
increased crime rate in the region. This article appears to be the latest in a long series
of articles which have been critical of the Queensland courts in general in relation to
sentencing matters, and Mr Adjudicator has made numerous complaints to the
publishers and their editors in relation to what he considers to be inaccuracies in their
reporting. The publishers and editors have never responded to his complaints.
Mr Adjudicator commenced defamation proceedings in the District Court of
Queensland, filing his Statement of Claim on 1 February 2018, in which he sought
$175,000 in damages. His Claim named Scribe Pty Ltd as first defendant and Ms
Skeater as the second defendant. On 1 February 2019, the District Court judge found for the plaintiff and awarded Mr
Adjudicator $135,000 and a further amount by way of interest pursuant to s 58 of the
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Civil Proceedings Act 2011 (Qld) at the rate of 10% per annum on the judgment amount
calculated from the date the defamatory article was published. Assume neither defendant has yet made any payment towards the judgment
debt. It has been established that Ms Reater Skeater owns real estate in
Queensland valued at $200,000 mortgaged to Sunshine Bank, and that the
amount outstanding on the mortgage is $50,000. It has also been established that
Scribe Pty Ltd is owed a substantial amount of money by Adventure Holidays Pty
Ltd. The debt is a result of extensive advertising placed by Adventure Holidays
Pty Ltd in the Koble Daily News
. Payment of that debt is expected to be made
within seven (7) days. Explain what steps could be taken by Mr Adjudicator in relation to these assets to
enforce the judgment.
Start same as before – letter for demand of payment before starting proceedings. Seek
enforcement warrant for seizer and sale of property r828
. Sale is by advertised public
auction. Difficulties/complications with real property (land). Note – position may be
complicated in case of Torrens Title Land – may arrange for enforcement warrant to be
arranged on the title. (div 7 land title act). Official copy of warrant with stat dec in titles
office. Caviet, and then title frozen for 12 months. Adventure Holidays debt,
enforcement warrant for redirection of debt Form 76. Service of warrant must be
affected on Adventure Holidays r842
. Adventure holidays to pay the enforcement officer
the debt owed. Important adventure holidays served, if not they don’t know they have to
redirect the debt. Payment of money by adventure holidays is valid discharge of
adventure holiday’s liability to scribe 846r. Form 1 Legal Profession Act 2007 (s 308(5)
) FORM OF DISCLOSURE OF COSTS TO CLIENTS Legal costs — your right to know You have the right to: • negotiate a costs agreement with us • receive a bill of costs from us • request an itemised bill of costs after you receive a lump sum bill from us • request written reports about the progress of your matter and the costs incurred in your matter • apply for costs to be assessed within 12 months if you are unhappy with our costs
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• apply for the costs agreement to be set aside • accept or reject any offer we make for an interstate costs law to apply to your matter • notify us that you require an interstate costs law to apply to your matter. For more information about your rights, please read the fact sheet titled Legal Costs — your right to know
. You can ask us for a copy, or obtain it from your local law society or law institute (or download it from their website)
Form 1, JAG ver 1 – 1 July 2007
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SUPREME COURT OF QUEENSLAND
REGISTRY: BRISBANE
NUMBER: S48 of 2019
Plaintiff:
BILL BLOGGS
AND
Defendant:
TOM BROWN
REQUEST FOR SUBPOENA
To:
The Registrar of the Supreme Court at Brisbane
Please issue a subpoena for production and to give evidence.
On behalf of:
BILL BLOGGS
Directed to:
THE COMMISSIONER OF POLICE
Of:
100 ROMA STREET, BRISBANE
Returnable before the Supreme Court at: Brisbane
Place:
Brisbane
Date:
14 June 2019
Time:
10.00am
Signed:……………………………
Dated:
REQUEST FOR SUBPOENA
HL High & Low Solicitors
Filed on behalf of the plaintiff
343 Queen Street, Brisbane
Form 44 R 414
Ph: (07) 3864 1111
Fax: (07) 3864 1112
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SUPREME COURT OF QUEENSLAND
REGISTRY: BRISBANE
NUMBER: S48 of 2019
Plaintiff:
BILL BLOGGS
AND
Defendant:
TOM BROWN
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE
To:
COMMISSIONER OF POLICE
100 Roma Street, Brisbane
THE COURT ORDERS that you attend and produce this subpoena and the documents
and things described in the schedule and attend for the purpose of giving evidence.
(a)
before the Supreme Court of Queensland
(b)
at Brisbane
(c)
on 14 June 2019, 10.00am and until you are excused from further attending.
SCHEDULE
All records in your possession relating to the investigation by one Constable Susan
Jones of a motor vehicle accident occurring at Pacific Highway Coomera on the
17
th
day of March 2019, and, in particular, the police notebook used by Constable
Susan Jones on that occasion.
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE
HL High & Low Solicitors
Filed on behalf of the plaintiff
343 Queen Street, Brisbane
Form 43 RR 415, 420
Ph: (07) 3864 1111
Fax: (07) 3864 1112
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LLB306 Civil Procedure
Study Guide - Semester 2, 2019
TAKE NOTICE
(1)
failure to comply with this subpoena without lawful excuse is contempt of court and may
result in your arrest.
(2)
you need not comply with this subpoena unless conduct money sufficient to meet your
reasonable expenses of complying with the subpoena is paid, or tendered to you, not
later than a reasonable time before the day on which you would be required to attend
the Court.
(3)
you have the right to apply to the court to have the subpoena set aside on any sufficient
grounds including –
want of relevance; or
privilege; or
oppressiveness, including oppressiveness because substantial expenses may
not be reimbursed; or
non-compliance with the Uniform Civil Procedure Rules.
(4)
if you are not a party to the proceeding and you incur substantial loss or expense in
complying with this subpoena, you may apply to the Court for an order that the party
who requested the issue of the subpoena pay to you an amount in addition to conduct
money to compensate you for the loss or expense, including legal costs, incurred in
responding properly to the subpoena.
ISSUED WITH THE AUTHORITY OF THE SUPREME COURT OF QUEENSLAND
Signed:
Deputy Registrar
Dated:
(
date
)
Issued at the request of HL High & Low, the applicant’s solicitor
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LLB306 Civil Procedure
Study Guide - Semester 2, 2019
Please note that the footnotes need to be removed and material in brackets is to be
replaced by the relevant information.
FORM 2
Section 31
Service and Execution of Process Act 1992
NOTICE TO WITNESS
This notice if very important
Please Read it and the attached document or documents very carefully
If you have any trouble understanding them you should get legal advice as soon as possible
Attached to this notice is a subpoena
1
(“the attached subpoena”) that is a subpoena for
the purposes of Part 3 of the Service and Execution of Process Act 1992
issued by the
[
issuing court or authority
].
Service of the attached subpoena outside [
State or Territory of issue
] is authorised by
that Act
.
Your rights
You may be able to apply to a court or authority to set aside or obtain other relief in
respect of the attached subpoena. If you would like to make an application you should
get legal advice as soon as possible.
Your obligations
You must obey the attached subpoena if:
(a)
at the time of service or at some reasonable time before [
date of compliance
] you
were offered or given:
(i)
enough money to meet your reasonable expenses in obeying it, including
any travel and accommodation costs; or
(ii)
a combination of money, travel tickets and vouchers to meet those
expenses; and
(b)
either:
(i)
you received the attached subpoena at least 14
2
days before [
date for
compliance
]; or
(ii)
you received the attached subpoena less than 14
2
days before [
date of
compliance
] and you received with the attached subpoena a copy of an
order made by [
issuing court or authority
] permitting the attached
subpoena to be served at any time.
1
If the process to be served is not called a subpoena, substitute the name of the process.
2
If the law of the State or Territory requires a longer period than 14 days from the service of a subpoena until the return date
substitute that period.
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LLB306 Civil Procedure
Study Guide - Semester 2, 2019
If the attached subpoena only requires production of documents or things, you may
comply with the attached subpoena by delivering the documents or things at least
24 hours before [
date for compliance
] to the Registrar
3
of [
issuing court or the court to
which the issuing authority belongs
].
This is important
If you are subject to a restriction on your movements that you might breach if you
comply with the attached subpoena, there are some additional actions you must take
for your own protection.
The restriction on you could be imposed as:
(a)
conditions of bail; or
(b)
conditional release from prison; or
(c)
conditions of probation; or
(d)
home or periodic detention; or
(e)
a community service order, community based order, attendance order, intensive
correction order or work and development order; or
(f)
some other restriction on your movements imposed by law or by order of a court.
If you are under a restriction of this kind, you must, as soon as practicable after you
receive the attached subpoena, inform your supervisor of the service of the attached
subpoena. If you are on bail, and your bail is subject to a condition that you report
periodically to the police, your supervisor is any police officer at the police station at
which you are required to report. If you are on bail, and your bail is subject to a
condition that you report periodically to a correction service officer, that officer is your
supervisor. In any other case, your supervisor is the person who supervises your
compliance with the restriction.
Also, you must, as soon as practicable, inform the [
issuing court or authority
] [
4
and
[
person at whose request the subpoena was issued
] of the restriction to which you are
subject.
You must take all reasonable steps to have the restriction varied so that you can comply
with the attached subpoena.
If the restriction is not varied, you must inform: the [
issuing court or authority
] [
4
and
[
person at whose request the subpoena was issued
] either:
(a)
of the steps you took to have the restriction varied, and that the restriction
has not been varied; or
(b)
that the law does not permit that variation,
whichever is the case.
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