Civil Litigation: LAWS2244 Semester 1 2004 Final Exam

[Examiner comments]

Question: A1 Mark: 62%

Question: A2 Mark: 22/35 = 63%

QUESTION 1A

Obtaining Information

Information Regarding Customer Lists

H could obtain production of the email submissions from Onwine via O34B r 2. To do so, it must be shown they are likely to have this information in their control, which here is clearly so. However, this is subject to any claim by Onwine as to privacy or confidential information (O 35B r 7). H would have to be very specific about the information sought and cannot obtain it if it can be retrieved from a party to proceedings on foot (Richardson v Pacific). If proceedings on foot, need to chase Red first, but here they are not.

H could seek an anton piller order versus Red if Red is trying to flee. Must show a strong case to entitlement to relief (need more info here), potential damage from R fleeing must be strong (here it is as given opportunity to dispose of one of only 2 sources of evidence known) and clear evidence that R has the documents. The order may be granted if Onwine does not have all the information on R’s computer.

Information re Parties

Under O34A rr 3,5, if H has made reasonable enquiries regarding the identity of parties and action, can get a 3rd party, here George Blanque, to provide information about potential parties or actions. H must show that GB is reasonably likely to have the information, which given the action and that R now works for a rival is quite likely.

Parties & Service

Red

Red will be a defendant. As she is overseas, international service is required which requires leave of the court under O 12. Would argue breach occurred in ACT.

White

White will be a defendant. As she lives in ACT, must serve originating process personally: O 2 r 18A

To join both Red and White as defendants, must have a common question of law or fact, which is clearly so here (O 19 r 1)

Merlot

Merlot will be plaintiff

Shiraz

If there is a substantive law issue to enable S to be joined (need more info), they will be joined as defendants. If they are, proceeding can be in the partnership name (O 50 r 11) and enforced versus all partners. Service will be in NSW under SEPA, so proscribed notices must be attached, and personally served under s15 SEPA.

Effecting Service to Red

If it can be shown that it has proven impossible to serve Red, the court can order another method of service (O12 r 12(1)).

Could try to leave with White, but R only rarely returns, so this may be insufficient. Could serve on business premises in Bangkok if this is sufficient to bring it to her attention.

If it is now 1 Dec 2003: The originating application will be stale => seek renewal under O 2 r 24 for a further 3 months, likely granted as have made sufficient attempts to locate and serve Red.

Proceedings 2

GB should transfer the proceedings to the Federal Court as the opt-out group proceedings will apply and any person receiving harmful emails will be bound by judgement unless they have previously opted out. This will limit any future claim.

Under s5 of Cross Vesting Act, GB can transfer proceeding to the Federal Court if it is a more appropriate venue. The Federal Court has exclusive jurisdiction for matters arising under the Spam Act, so is clearly a more appropriate venue. Also, as the Spam Act is a Commonwealth law, s39B of the judiciary act give the Federal Court jurisdiction.

Under s5 of C-V Act, transfer is also allowed if in the interests of justice. It is arguably more just to have all parties bound by the opt out group proceedings rather than having GB defend any future claims on the same issues, by litigants not bound by the initial judgement.

Response to Action by Prudence

(s13 Cross Vesting Act): cant appeal against transfer so must stop it before it occurs.

It would be difficult to argue that the Federal Court is not a more appropriate venue, and there would be no issue regarding distance or expense to travel to court, as both the Federal Court and ACT supreme courts are located in the ACT.

Could get one person to discontinue as the opt out procedures only apply where 7 or more persons (s33C(1)) but the action could still be consolidated in the federal court as common questions of fact.

Purpose of Proceedings

If the action is designed to exert pressure, rather than a legitimate claim, it may be struck out under O 29 r 4.

This likely would result in cost sanctions against the vexatious litigants, so P should advise her clients to discontinue. It is an abuse of process to bring vexatious proceedings and P, as representing solicitor may have personal sanctions imposed against her for breaching her duty as an officer of the court, if she allows the proceedings to continue.

QUESTION 2A

Agreement to Mediate

An agreement to mediate is enforceable if it is sufficiently certain (Hooper Ballie). Here the facts are analogous to (Elizabeth Bay) where a bare agreement to mediation administrated by an Alternative Dispute Resolution Organisation without their guidelines incorporated into the agreement was held unenforceable.

As the clause will be unenforceable, there will be no obligation on C to attend the mediation, as it is a consensual dispute resolution process. Absent an enforceable mediation clause, C is not required to attend.

[3.5]

Tania’s Role as Mediator

Tania, as a mediator, should not give F advice, legal or otherwise, regarding his disclosures.

She may wish to immediately start private sessions where she can ascertain the full scope for Freddy’s mutterings regarding the letters of complaint. She should also remind F that mediation is consensual.

She should try to refocus discussion on common ground.

[2. Confidentiality? Privileges?]

Commencement & parties

Filing the originating process has commenced and invokes the jurisdiction of the court: O 2 r 1

The Parties would be:

[Builder t/as] C Change Constructions - Plaintiff

Anton - Defendant

Freddy may be joined as a 3rd party by CCC if Anton brings a cross claim in respect of the shoddy building as CCC may be able to recover against him.

Case management is not an end in itself (JH Holdings) and would likely not apply here is adjournment is sought. If such adjournment is sought then the court can consider the effect of adjournment on other litigants and n court resources (Sali v SPC)

[NO; Building dispute = case management (after appearance); Liquidated debt = Master List. 2.5]

Defence and Counter Claim

Defence

The defence can be struck out as it does not disclose a cause of action (ie it doesn’t disclose an actual defence): O 29 r 4. This is obvious from the face of the defence (General Steel), so strike out would be allowed.

Summary judgement could be sought after the defence is struck out, however, A must have entered an appearance and affidavit must be filed by B: O 15

Counter Claim

B must file a defence [O27 r 2] against the counter claim. If B has some right in respect of contribution from F in regard to the renovations, join F as a 3rd party under O 19 r 5 as there is clearly a common question of law or fact (Birtles v Cth)

[4.5]

Affidavit of Documents

Under O 34 r 3(1), discoverable documents are those in possession or power of parties that relate directly or indirectly to the matter at issue. If the letters of complaint are discoverable, they must be included in the affidavit of documents.

The originals held with the Builders Licensing Board are only discoverable if within Fs power to access them (Palmdale) => need more information regarding access to them.

If F has copies of the documents, they should be mentioned in the affidavit. As the letters would suggest a train of enquiry (Peruvian Guano) that may lead to further information abut the case and are therefore discoverable. If the copies are made for the purposes of litigation, then F could claim client legal privilege, if the dominant purpose for the existence of the copies was correspondence with his lawyer (Esso v FCT)

[4.5]

Consent Judgement

The terms of the consent judgement will affect A’s ability to bring further action so more information is required regarding the terms of the consent judgement.

Res judicata will bar future litigation where the matter ha already been dealt with (Henderson)

Here there is latent damage, so it is arguable that it is a separate cause of action related to the matter decided rather than the same matter. If so, the limitation period will run from the date of damage as this is when the action accrues (Cartlege) [=> NO]

Need more information as to when damage caused to know when limitation period runs from. If expired, could try to extend, but must show it is just and reasonable to do so (Brisbane Sth v Taylor)

If outside time => problem

[5]