Civil Procedure

civil procedure

Q) Advise which court the proceeding should be commenced in. Justify this by showing particular regarding the quanta of damages.

 

In general, any proceeding brought in Queensland must be commenced by a claim unless the rules require or permit application.[1] The most appropriate method for BT to originate proceeding is to use a claim in Form 2.[2] In order to determine which court proceeding will be pursued, we need more information about whether the contract was formed in a way not specifically described in this scenario. Assuming that the contract was formed, and breached in Queensland. However, Zen’s registered address is in Surrey Hills, Victoria, this means that we will rely on the Service and Execution of Process Act 1992 (Cth).[3]

 

A quanta of damages

  • 2015 – 07.2016 Earnings:
  • Annually: $520,000
  • Monthly: $ 43,333.33
  • Weekly: $ 10,833.33

 

  • 03.2017– 07.04.2017 = lost 35% ($3,791.66) of weekly turnover

 

  • Current earnings after loss 35%:
  • Annually: $338,000
  • Monthly: $28,166.68
  • Weekly: $7,041.67

 

  • 03.2017 (from the date of breach contract) – 31.12.2018 (final date of agreement will be terminated) = $15,166.65 (monthly loss) x 27 (27 months until the agreement will be ended) = $ 409,499.55

 

  • Total sum of claim cost: $409,499.55 + a

 

Here, damages include loss of profits, wasted expenditures to purchase new vehicles and employed additional drivers and guides, and also loss of opportunity. As the pecuniary amount of personal action that BT seek is $509,499.55, the District Court of Queensland is proper jurisdiction to hear this claim. The District Court can hear disputes involving amounts, more than $150,000 and less than $750,000.[4]


[1] Uniform Civil Procedure Rules 1999 (Qld) r 9.

[2] Uniform Civil Procedure Rules 1999 (Qld) r 22.

[3] Service and Execution of Process Act 1992 (Cth) s 15; Uniform Civil Procedure Rules 1999 (Qld) r 123.

[4] District Court of Queensland Act 1967 (Qld) s 68 (1)(a) and (2).


 

Q) Advise how to serve the following potential defendants which originating process:

 

As a general rule, service is not allowed on certain days such as Christmas or Good Friday.[1] If service arrives after 4 pm, it is deemed to be serviced the following day.

 

Zen

Zen is a company located in Victoria. Even though it is not a person, the document still can be served personally in accordance with 109X of the Companies Act 2001 (Cth).[2] Personal service to a director can be considered, yet this may not be an option as the director of Zen, Qui lives in Hong Kong. The most appropriate way to deliver service is for BT to either leave the document at or post it to the registered office.

 

Qui

If the element of breach contract and negligence is successfully satisfied by BT, then he will be served. Although, Qui lives in Hong Kong, service of the originating process will still be permitted to him without the court’s leave, since the cause of action is based in Queensland.[3] As Australia has a service of process agreement with Hong Kong, follow the rule of this convention.[4]

 

Zhong

If BT do not know Zhong’s physical address, personal service cannot be an option. If BT cannot find where Zhong is then substitute service can be used,  it cannot be an option in this case as BT found Zhong on the internet, and they checked his Facebook profiled  was recently updated on 3 March 2017. So, BT will use informal service pursuant to r 117, that states they can be allowed to send a message of the claim through a Facebook account: Symes v Saunders.[5]


[1] Uniform Civil Procedure Rules 1999 (Qld) r 101.

[2] Uniform Civil Procedure Rules 1999 (Qld) r 105(1), r 106(1) and r 107.

[3] Uniform Civil Procedure Rules 1999 (Qld) r 124.

[4] Uniform Civil Procedure Rules 1999 (Qld) r 130.

[5] Symes v Saunders [2011] QDC 217.

 


 

Q3) Provides cause of action identifies in question to be the joined in a single proceeding.

 

There are two circumstances that the parties can take into account to join in the same proceeding that are joinder of plaintiff by plaintiff and joinder of defendant by the plaintiff. BT, as a co-plaintiffs may wish to proceed with the separate causes of action of breach of contact but also, they can consider including in the same proceedings against Zen, Qui and Zhong if one of the followings is satisfied:

  1. A common question of law or fact arises in the proceedings;[1] or
  2. All rights to relief sought in the proceeding are as to the same transaction or events or series of transactions;[2]or
  3. The court gives leave .[3]

 

In this case, both 1 and 2 are satisfied. It is a common question of law and fact which is the breach of contract by Zen and Zhong that causes financial losses to BT. The relief sought arises of the series of transaction here, as Zhong breached the employment contract with EA and worked for Zen. As a result, BT have lost 35% of their weekly turnover.


[1] Uniform Civil Procedure Rules 1999 (Qld) r 65(1)(a);Bendir v Anson [1936] All ER 326.

[2] Uniform Civil Procedure Rules (Qld) r 65(1)(b); Payne v Young (1980) 145 CLR 609.

[3] Uniform Civil Procedure Rules (Qld) r 60(2)(c).


* Content was extracted from assessment and was submitted via Turitin during semester 1, 2017.


Click to download Civil Procedure Note I

Click to download Civil Procedure Note II

Click to download Civil Procedure Note III

 

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