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Mar 30, 2024

Assignment Task

Thinking critically about civil procedure and the adversarial system

Anna Olijnyk, ‘Justice and Efficiency as Aims of Civil Procedure’, Chapter 2 of Justice and Efficiency in Mega-litigation (Hart Publishing, 2019), pp. 9-17; and Ray Finkelstein ‘The Adversarial System and the Search for Truth’ (2011) 37(1) Monash University Law Review 135-144.

a) What are the main aims of civil procedure that Olijnyk analyses? What are the various ‘trade-offs’ that she identifies in these aims?

b) What does Finkelstein see as the biggest problem with the civil justice system in Australia? What are his main proposals for reform? Which of these do you think have the most merit and which could be subject to criticism?

c) In your opinion, should civil procedure aim at the ‘truth’ as Finkelstein suggests? Also should ‘justice’ be understood, as Olijnyk describes it, simply as ‘giving effect to the substantive law’? What else might ‘justice’ encompass from a procedural point of view?

Case management

Your client is a defendant in a court proceeding in Queensland. The proceeding has been ongoing since March 2022.

The plaintiff was ordered to amend its pleadings a number of times. After many interlocutory hearings, in November 2023 the parties eventually informed the supervised case list manager that they were ready for trial and a trial date was set for the week of the 28 March 2024.

You have been preparing the material for trial, however you have today received notice of an application by the plaintiff for leave to make a further amendment to their claim. The amendment seeks to include a new allegation of a statutory breach on the part of your client. This new allegation is based on facts that were alleged in the previous pleadings, however the new allegation of breach of this Act will complicate the matter, add to the legal costs, and mean that the trial will not be able to be held on the 28 March.

What general arguments could you make to the court (using the material from week 1) for disallowing the application?

What is a junior lawyer to do?

Part A

You are a lawyer in a middle sized city practice working on a matter for an established client. The client provides infrastructure support to mining operations. The client and another similar company entered into a joint venture arrangement to provide accommodation and ongoing 4 accommodation support at a large central Queensland mine. The client and the second company had successfully won the tender for this contact 6 months ago and are in the startup phase of supplying, delivering and installing prefabricated accommodation to the site. Under the agreement, it was the second company’s responsibility to provide the accommodation which they were to import from China.

The first block of accommodation has been delivered on site. The miner is not satisfied. It has given the joint venturers notice (as per the accommodation contract) that the accommodation is deficient in several critical areas; including that the roofing and wet areas are not in accordance with Australian design rules.

The second company is claiming that these faults are minor and under the joint venture agreement with our client can be seen as maintenance and/or servicing, both which were the responsibility of the client. The client has advised that this is a significant breach of good faith by the partner and wishes to explore its legal options regarding the joint venture agreement and the options under the contract with the miner for taking over the contract in its own right entirely.

Part B

You and the senior associate who is generally responsible for this client are having a meeting. She says that counsel has advised her that the joint venturer has breached the fiduciary duties between partners and that she would like commencing process drawn up alleging a breach of fiduciary duties and pleading rescission of the agreement. What do you say?

a) Yes boss as you say; do you support the Suns or the Lions?

b) Are joint venturers fiduciaries?

c) I like those heels, where did you get them?

d) Can you explain the facts again to me and how they relate to the cause of action? e) Can you forward counsel’s letter of advice?

f) Some combination of the above.

Additional Questions

No Defence what next?

The plaintiff delivered the following statement of claim in an action in the Supreme Court of Queensland:

1. On 22 December 2017 the plaintiff was crossing Kessels Road in Nathan.

2. There was a green light in the plaintiff’s favour.

3. The defendant drove through the green light and struck and injured the plaintiff.

4. The plaintiff was injured because of the defendant’s careless driving.

Particulars of negligence

i. Failing to keep a look out

ii. Driving at an excessive speed in the circumstances

iii. Driving through a red light

iv. The plaintiff suffered personal injury and loss and damage.

Particulars of Injury and Loss and Damage

i. Fractured left leg and left arm

ii. Deep lacerations

iii. Bruising iv. Pain and suffering and mental shock

5 The plaintiff claims $200,000.00 damages.

The defendant has failed to file a Notice of Intention to Defend. Outline the options and steps that the plaintiff must now take

Jurisdiction (cross-vesting)

Patricia lives in Brisbane (Qld). While on a beach holiday in NSW in 2017, her jet-ski malfunctioned and collided into a small passenger boat. The boat was damaged and Patricia and some of the passengers were injured. The boat belongs to a tour company based in Melbourne (Vic). The passengers were all from Gold Coast (Qld). The jet-ski manufacturer is a company with a registered address in Sydney. An action brought against Patricia in negligence by the tour company is pending in the Victorian Supreme Court.

What factors might be relevant for Patricia to argue that the matter should be transferred to a Queensland court?

Fun with ‘Rogs

You act for the Defendant in a Personal Injury lawsuit that has been commenced in the Supreme Court of Queensland. The Plaintiff alleges that your client, Doctor Jones, was negligent in performing surgery wherein the wrong leg was amputated. The Plaintiff has also alleged that the Defendant was under the influence of alcohol at the time of the operation.

The Defence has admitted that Doctor Jones performed the operation, but has denied negligence. The Defendant has pleaded contributory negligence, arguing that the hospital anaesthetist, Doctor Feelgood, advised him that it was the left leg (and not the right) that needed to be amputated. The Plaintiff has delivered the following set of interrogatories (which would be unusual in this sort of case, but work with me here folks – you’ve got to start with the basics!).

1. Just prior to the time you performed the operation on the Plaintiff, were you attending the annual Naughty Nurses Happy Hour at the Mercure Hotel?

a. If the answer to Interrogatory Number 1 is in the affirmative, who were you with? If the answer to Interrogatory Number 1 is in the affirmative, did you consume alcohol during that time, and if so, how much over how long a period?

b. If the answer to Interrogatory Number 1 is in the negative, where were you?

2. Precisely how much alcohol did you consume in the 48-hour period just prior to performing the amputation operation on the Plaintiff?

3. Whilst attending the Naughty Nurses happy hour on the evening in question, did you not raise your glass in a toast to the Hospital Registrar, and say ‘Let’s hear it for the staff! ‘

4. During the operation, did you:

a. Drop surgical instruments on the floor, and if so, how many and which ones?

b. Sing in a loud voice?

c. Swear at the charge nurse?

d. Call your associate to discuss golf plans on your mobile phone?

e. Wear your surgical gown back to front?

5. Following the operation, when you returned to the party, did you advise your friends that you had rushed back so as to not miss out on the complimentary snacks?

6. If the answer to Interrogatory Number 5 is in the affirmative, was that true?

7. Did you perform any other operations during the 10 hours preceding and following the plaintiff’s amputation operation?

8. Who was the anaesthetist, and was she a former girlfriend?

9. Did you perform the operation on the Plaintiff in which the incorrect leg was amputated?

10. In your capacity as a surgeon at the Metropolitan Public Hospital, how much did you earn in the last financial year?

11. Were you negligent in performing the operation on the Plaintiff?

12. Will the patient require occupational therapy or physiotherapy?

Commencement, Service and Parties

Part (a)

Sound and Find Pty Ltd is a mineral exploration company. Sound and Find’s Managing Director and major shareholder is Steve Watson. Its business is the use of geological sounding and sonar technologies in the discovering of mineral ore deposits. And its business has been good. In the past year Sound and Find has made an after tax profit of $53 million.

On Sunday 26 February 2023 Steve Watson’s 10 year-old daughter’s morning cartoons were interpreted by a woman at the door. The woman asked if this was Steve Watson’s home and whether she was his daughter, Watson’s daughter answered affirmative to both. On hearing this, the woman left documents with Watson’s daughter. The documents were a Claim and Statement of Claim issued in the Supreme Court of Queensland naming Sound and Find Pty Ltd as defendant.

It is now the 24 March 2023. You are Sound and Find’s regular lawyers. At the end of a routine meeting Steve hands over the Claim and Statement of Claim saying, ‘I almost forgot, these were left at my house Sunday last month, they’re a joke aren’t they, I should just ignore them.’

Advise Steve on Sound and Find’s options in responding to the Claim and Statement of Claim and recommend which option is the most prudent.

Part (b)

Sound and Find Pty Ltd has decided to enter in an unconditional Notice of Intention to Defend and defence. The Plaintiff on the claim is Xeone Pty Ltd another mineral exploration company. Xeone claims that Sound and Find owes Xeone an accounting for profits as the recent profits of Sound and Find have come about through Sound and Find employing Derek Hogspun, an ex-Xeone employee. Xeone argues that Hogspun, in breach of his termination agreement with Xeone, has passed on Xeone’s commercial secrets as to potential exploitable ore deposits to Sound and Find, and that Sound and Find has used this knowledge to secure exploration and mining leases which it then has on-sold to miners. Since January 2022 Hogspun is no-longer employed by Sound and Find. He is currently living in the Maldives and the only contact that he seems to have with the industry is that he writes a regular blog on a resource geology website - ‘Ore Trackers.’

Sound and Find wish to strongly defend this matter. It is of the opinion that the recent profits by Sound and Find were from its own original hard work or if it could be proved that Hogspun had utilised Xeone’s commercial secrets while employed by Sound and Find, Hogspun did so independently, without direct or indirect approval by his new employers and in breach of his employment contract with Sound and Find which contained the industry standard provision prohibiting employees from utilising commercially sensitive information gained while employed by a former employer. The only defendant on the Claim is Sound and Find.

On further questioning from you Steve does remember that this rumour concerning Sound and Find’s good profit growth corresponding with its employing of Hogspun has been kicking around the industry for the past year. Indeed, Steve knows the rumour came from Xeone’s Managing Director, Tobias McWeaton, an ex-friend of Steve’s. Steve and McWeaton were once partners in a start-up exploration firm when they were both just out of university. The partnership ended acrimoniously. Steve says to you that he is ‘sick and tired of McWeaton denigrating me and my company’s name and reputation throughout the industry.’ Advise Sound and Find of the following:

1. What actions does Sound and Find have against Hogspun, Xeone and/or McWeaton?

2. The possibilities and process to add Hogspun, Xeone and McWeaton to this matter.

3. Service of the following a. Hogspun. Maldives does not have a service convention with Australia.

b. Xeone Pty Ltd, a company registered in New South Wales.

c. McWeaton whose residential address in 54B Noosa Heights, Noosa, Queensland.

Art Critics

Hewes is a renowned arts critic of many years standing who has published several well-known books in the area of modern art. Celia is an emerging art writer, who has just published her first book. Celia not only critiques works of art in her book, but also critiques other critics. Shewrites in her book that it is time for the ‘old’ critics who have nothing new to contribute to the field to step aside and make room for a clutch of younger, more energetic and innovative critics (including herself). She singles out Hewes as a ‘decrepit old man whose knowledge of modern art is slipping as quickly as the years are passing him by. He has not written anything original or interesting in years. His most recent book shows a total lack of understanding of contemporary art.’ Hewes is enraged by Celia’s book and has commenced defamation proceedings in the Supreme Court of Queensland, filing and serving the claim and statement of claim on 1 March 2018. Hewes comes to see you on 15 April 2018, not having heard anything from Celia.

1. Advise Hewes what steps he can take next.

2. Celia files a notice of intention to defend and defence on 30 April 2018. In her badly drafted defence she merely repeats her statements about Hewes and alleges that the proceeding is a stunt. How should Hewes respond?

3. Now represented by a solicitor and senior counsel, Celia amends her defence and relies on the defences of truth and fair comment. Hewes is starting to worry about pursuing the matter, particularly as he acknowledges that his most recent book was not his finest effort. You have since discovered that the book was savaged by a number of book reviewers. What do you advise Hewes to do?

Jurisdiction again

1. What types of disputes should be begun at the Federal Court?

2. Can the Supreme Court of Queensland exercise jurisdiction over a personal injury matter that occurred in New South Wales? Does that mean the Court will determine the matter? What factors might influence the Court in leaving the matter in Queensland? What factors might influence the Court in transferring the matter to the Supreme Court of New South Wales?

Flying Gnomes

After a hard night celebrating the end of the civil procedure exam on 3 June 2016, Jackson had an accident. At approximately 11:20 pm as Jackson waited to cross the road in Fortitude Valley he was hit in the head by a flying gnome. The gnome caused major cranium damage and significant soft tissue trauma in Jackson’s brain. While Jackson survived the flying gnome attack, he has not been the same. He has developed serious personality changes, requires significant medication and on-going care. He is not the person he once was. He has had to forgo the promising career as a trainee solicitor at a top 5 firm. The job offer arrived with a first year salary of $62,000 the day after the accident. Jackson now lives in his mother’s basement and amuses himself with a model train set. He will never work in his life.

The gnome wasn’t really a flying gnome. It was a rather ordinary, if not large, molded concrete garden gnome imported into Australia from China by Dixie Pty Ltd. The offending gnome was part of a truck load of gnomes being shifted from the Dixie warehouse to a Useless Junk Family Discounters store. The gnomes were being shifted in a closed truck. The offending gnome became airborne when the truck lurched over a pothole in the road and the rear doors flew open. After the accident, it was found that the lock on the rear doors on the truck had broken. An accident investigator determined that the lock was broken either due to a design fault or continual misuse of the lock by the driver of the truck. When the doors blew open the lurching of the truck caused the top box of gnomes to fall. As fate, or poor loading of the truck would have it, the box hit a gym trampoline at the base of the stack of boxes. The angle of the box hitting the trampoline caused the offending gnome to bounce out through the now open doors of the truck and straight into Jackson’s head.

The truck was owned by a Dixie Pty Ltd and was based at the warehouse. Dixie was a high stock importer and the warehouse ran 24 hours a day. The driver of the truck was Zinby Yativich, who when not driving trucks worked as a packer at the warehouse. At the time of the accident Zinby was significantly fatigued. It had been a busy afternoon/night at the warehouse and he had been on duty for 10 hours without a break. In an affidavit he swears that he used the lock on the truck correctly, he does admit that the packing of the gnomes in the truck was not as safe as it should have been, ‘but they were flat out that night. ‘

a) It is the 5 February 2017 and Jackson wishes to commence litigation. Advise Jackson on what he can do, in which court, and which parties.

b) The following is an extract from an affidavit sworn by the service agent you contacted to serve the originating process on Zinby Yativich.

c) It is now late October and pleadings have closed. Trolling through the Internet while at work you discover that Denning Coachworks manufactured the truck body in the Jackson matter. Denning is a well-established Australian manufacturer of vehicle bodies based in Melbourne. On the website you find that other purchasers of the Denning Closed Truck body of a similar model to the Dixie truck had reported door lock failure. There is a small notice on Denning’s website saying that it denies there are any 23 problems with the locks it fits to its Closed Truck bodies and any lock failure is solely attributable to poor usage. Can and how could Denning be joined to the proceedings?

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