Tutorial questions civil procedure

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Victoria University *

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2001

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Law

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Apr 3, 2024

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docx

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Session 4 tutorial question (session 3 notes) Fiona was driving along Queen Street past Victoria Law School on a Friday afternoon at 4.55 pm last month when a Holden ute collided into the rear of the Ford car that she was driving. The Ford was damaged. On the other hand, the Holden ute appeared undamaged, probably due to the bullbar fixed to its front. The Holden ute driver was Mick. Fiona and Mick exchanged personal particulars including their mobile numbers. Mick told Fiona that he had no insurance but assured her that he would pay for the repair costs of the Ford. Neither Fiona nor Mick was injured. The Ford cost $8,500 and 3 weeks to repair. Fiona had only third party insurance so she could not claim on her own policy for the repair costs. In the interim, the repairers rented to Fiona a replacement car at a discounted rate of $25 a day. When the car was ready, Fiona tried to contact Mick to settle the bill but could not reach him. After unsuccessfully trying numerous times over 3 days to contact Mick, Fiona went to the address that Mick had provided, only to find that Mick was not there. Instead she met Dean, the occupant of the house. It turned out that Mick was Dean’s cousin from Queensland. Dean claimed that the Holden ute belonged to him and he told Fiona that he had no knowledge of the accident. He claimed it was on loan to Mick at the time of the accident. Dean told Fiona that Mick had returned to Queensland. When she requested him for Mick’s address in Queensland, Dean refused to give it to her. Dean also confirmed that the Holden ute was uninsured. Fiona had no choice but to settle the bill with her own money first as the repairers would not release the Ford to her without payment. Fiona wants to recover her loss comprising the repair costs of $8,500 and rental of the replacement car amounting to $525. 1. Discuss the preliminary (initial) matters Fiona has to consider. 1. Identify what Jurisdiction form facts is based on a. Actual incident arose in Victoria, Victoria is where the tort occurred – which would mean proceedings would be commenced in Victoria. b. No issue with personal injury – so proceedings would most likely be held in VCAT (Through Conciliation) or County Court. c. Identify the state and court. 2. Identify cause of action a. Debt recovery claim 3. Identify the Parties based on facts a. Cause of action would be to give rise to the forum – which would be VCAT and also Jurisdiction which is Victoria. b. In VCAT parties are called applicant and respondent c. In this case Fiona would be applicant and Mick would be respondent. 4. Identify Who’s at fault? a. Ford car took 3 weeks to repair (Fiona’s vehicle) - Mick was driving holden car which is undamaged. b. No fault – Just one party wanting to claim for the repair of vehicle to the other party. c. Fiona is trying to recover the costs of the repair so she would be the applicant and Mick would be respondent. NOTE: Debt recovery claim

2. Further, discuss if Mick is living in the Republic of Temasek instead of residing in Queensland. 1. Need to service the other party (defendant) (under rule 6.02 SCR/CCR/MCR) ❖ Provide the service via registered post. ❖ postal acceptance rule applies – does not need to be picked up – if not picked up within 30 days, then after sent – if no reply would apply for substituted service. 2. Need to identify if the defendant is either in Australia, overseas or in same state. ❖ In this case if Mick is residing in Temasek (which is overseas) then would fall under overseas jurisdiction. (In any other country, other than Australia – 42 days after service Rule 8.01 CPR 2010) ❖ The timing to file a defence or respond to the service that was given to him is ❖ If residing in Queensland – then would fall under Australia jurisdiction - For service of originating process outside Victoria but still within Australia, the provisions are found in the Service and Execution of Process Act 1992 (Cth) or SEPA. ○ Sections 9, 10 and 15 SEPA effectively gives the SC/CC/MC in personam jurisdiction over any defendant (including legal persons who are not natural persons) present anywhere in Australia. ○ Under rule 8.01 CPR 2010 out of Victoria, but in Australia not less than 21 days after service. Session 5 tutorial questions (relating to session 4 notes)

Recap from previous discussion paper (summarised) with additional facts Fiona was driving a Ford car along Queen Street past Victoria Law School on a Friday at 4.55 pm last month when a Holden ute driven by Mick collided into the rear of the Ford car causing damage but no injury. They exchanged personal particulars. Mick told Fiona he had no insurance but promised to pay for the repair costs of the Ford. The Ford cost $8,500 and 3 weeks to repair during which Fiona rented a replacement car costing $525. After unsuccessfully trying to contact Mick to settle the costs, Fiona went to his address where she met Dean instead of Mick. Dean claimed to be Mick’s cousin, to be the owner of the Holden ute which was on loan to Mick at the time of the accident, that he had no knowledge of the accident, that the Holden ute was indeed uninsured and that Mick was from and had returned to Queensland. Dean refused to give Fiona Mick’s address in Queensland. Fiona had to settle the repair bill and the car rental costs herself as she had only third party insurance. Fiona had noted that the Holden ute had “ Speedex Couriers” and a telephone number on its sides. Fiona’s friend, Holly, was a passenger in the Ford. Fiona was helping to transport Holly’s $5,500 ultra-light full quick-release bicycle which was in the boot of the Ford. The collision damaged Holly’s bicycle as the impact caused the car boot to cave in. Holly herself was not injured in the accident. Mick had also given Holly his personal particulars including his address and mobile number and promised to pay for the cost of repairs to her bicycle or for a replacement bicycle. It transpired that the damage to Holly’s bicycle was too extensive to repair and she wanted Mick to pay for a similar bicycle as replacement as well as the loss of use of her bicycle. Without her bicycle, Holly has to take public transport and she was incurring $40 in myki fares per week. Holly had no success trying to contact Mick either. Holly had in fact gone together with Fiona to Mick’s address where they had found Dean instead. When pressed, Dean had let slip that Mick would be coming back to Victoria as he works with Speedex Couriers on a casual regular basis. Holly and Fiona contacted Speedex Couriers for more information but the manager would only confirm that Mick was a casual courier with them but refused to provide any other information, citing privacy reasons. Holly has since purchased a replacement bicycle for $5,000. Her myki fares have cost $120 altogether. 1. Discuss the preliminary matters Holly has to consider if she wants to recover her loss, the possible impact on Fiona and what Fiona may do. Order 9 of SCR/CCR/MCR – sets out the rules with respect of joinder of claims. Joined in several liability - If you have joined as a several liability, such as a partnership arrangement – if it is a partnership through common law there is a joint in several liability. If a tax law partnership – then jointly liable. The best thing to do is sue and join both parties in a partnership – need to look at what assets they both have – can see if a person is part of a beneficiary of a trust – ‘info track’ without breaching privacy. 1. Need to identify who will be sued. a. If Mick was employed by ‘speedex couriers’ while the incident occurred – employee could be liable - join the company to the proceedings and recover from them – because it was an accident that arose potentially from ‘employment duties’. If the company were to join the defendant – what rule would apply? ❖ Under Joinder of claims (Rule 9.01 (order 9 SCR/CCR/MCR) ○ Permissive joinder (Rule 9.02) - ○ Also, could be necessary joinder (Rule 9.03) – because by virtual of employee relationship – it would be vicarious liability, because if you are driving a car in the course of employment duties and have an accident while working – the company would be held responsible the worker would then recover from the company if the worker was charged with being negligent.

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