Civil Procedure and Advise Employee Issue

Topics: Civil procedure, Plaintiff, Court Pages: 5 (1083 words) Published: October 18, 2013
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ADVISE EMPLOYEE

Issue
Solution

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ADVISE EMPLOYEE

Issue
Solution

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ADVISE EMPLOYEE

Issue
SolutionQuestion 1.1

SERVICE
-Personal service
oR6.02 An originating process shall be served personally on each defendant oR6.03 Personal service is effected by leaving a copy of the writ with the Defendant or putting it down in their presence if they do not accept a copy oPersonal service is not effective in this way because the plaintiff has failed to fulfill this requirement

-HOWEVER - Common Law Pino v Prosser
oRules states that a document can be left with a spouse on the understanding that it will be brought to the individuals attention oIn reference to the facts, Anna, Angelo’s wife, explicitly stated that she would give the envelope to Angelo

JURISDICTION

-Victoria is not a convenient forum for the proceeding
-The Defendant can challenge the appropriateness of the Supreme Court under r7.05(2)(b) -Defendant may argue that there is a more appropriate court to hear the proceeding; the NSW Supreme Court. It is unlikely that the courts will find that the VSC is a clearly inappropriate court. -However, the defendant must also show that determination in the VSC would be oppressive and vexatious (Oceanic Sun Line v Fay and Voth)

Question 1.2

Issues with statement of claim
-Format of the document
o‘In the Supreme court of Victoria’ should be on one line and ‘at Melbourne’ should be below on another line oThe addresses of each party should be omitted
oThe document number should be written ‘89473/09’
oIt should say ‘-and-‘ instead of ‘v’ between the parties names oThere needs to be tram tracks outlining date of document and who the document is filed on behalf of -Details of the claim
oNeed to be numbered
oThere needs to be particulars describing the details of the event oThere should be no mention of witnesses or any other evidence oThe plaintiff has raised something that should be mentioned by the Defendant as a defence oThe plaintiff has raised a matter which they should talk about it the reply

Question 1.3
-Under r23.03 Summary judgment for the defendan can be given by the court at any time if the defendant has a good defence on the merits oThis rule only applies when Plaintiffs case absolutely hopeless or beyond rational debate – Dey v Victorian Railways Commissioners -According to Seven Network v News Limited, litigants should not be deprived of their day in court, however this judgment sould not be exercised unless it is clear there is no real question to be tried -This is a fairly high threshold and D will most likely be unsuccessful in attempting to obtain summary judgment, as it doesn’t appear Ps case is absolutely hopeless

PAUL SHOULD..??

Question 1.4
-Under r36.01 pleadings can be amended to correct an error or defect in proceeding or to avoid a multiplicity of proceedings -Whether or not this amendment is granted depends upon the judges discretion -The court will look at factors as per Ketteman v Hansel Properties -Aon Risk services – Need to look at if a new hearing would push others back

Question 2.1

Question 2.2

Question 2.3

Question 2.4

Question 3

Question 1.1

SERVICE
-Personal service
oR6.02 An originating process shall be served personally on each defendant oR6.03 Personal service is effected by leaving a copy of the writ with the Defendant or putting it down in their presence if they do not accept a copy oPersonal service is not effective in this way because the plaintiff has failed to fulfill this requirement

-HOWEVER - Common Law Pino v Prosser
oRules states that a document can be left with a spouse on the understanding that it will be brought to the individuals attention oIn reference to the facts, Anna, Angelo’s wife, explicitly stated...
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