australian law and civil procedure

Answer each of the 10 sub-questions arising from this problem situation. Briefly discuss relevant cases and principles in relation to each sub-question Each is worth 2 marks.

In June 2015 Darwin Taxi Trucks Pty Ltd (“DTT”) engaged Building Consultants Pty Ltd (“BC”) to design and construct additions to DTT’s premises at Winnellie. The additions included a new 2 level loading bay and extra warehouse space. Jim Joiner, managing director of DTT, consulted DTT’s lawyers in relation to the preparation of their contract with BC and in the course of this consultation discussed the specifications in the contract. The lawyer had experience with building warehouses and queried the drafting of the provisions in relation to the thickness of the concrete floor, particularly given the fact that trucks would be driving on it when loading and unloading deliveries. She offers to call her friend at Top End Engineering to obtain information on appropriate specifications to be included in the contract. The lawyer’s notes of the call record that her friend advised that specification of a 240 mm floor will be OK for weights up to 10 tonnes as long as the floor was given at least 15 days to cure properly. Jim Joiner accordingly insists that the contract specify a 240 mm floor, but the contract is silent as to the period for cure.

BC duly constructs the floor to the required thickness, but fails to allow the concrete to cure for 15 days. BC is anxious to receive its next contract progress payment, which is due on building certification of the floor slab. Accordingly it immediately (the day after the concrete pour) calls in a Building Inspector to undertake a progress certification. The Inspector refuses to certify the works, and informs the Principal DTT that in his opinion the only way of remedying the problem is to jackhammer the floor and start over again. BC refuses to do this unless DTT agrees to pay for the additional work as a contract variation, asserting that it has constructed the works in accordance with specifications inserted in the contractual documents at DTT’s insistence.

DTT commences legal proceedings against BC in the NT Supreme Court for damages for breach of contract and negligence, and a declaration that it is entitled to rescind the contract in reliance on BC’s refusal to remedy defective works.. BC counter-claims seeking payment from DTT for building works already completed. BC seeks discovery of the lawyer’s notes of the call to her friend at Top End Engineering.

(1) What is the relevance of the information in the notes? Would you describe the notes as directly relevant?

(2) Are the notes discoverable?
(3) Are the notes covered by legal professional privilege?

BC instructs its solicitors to find a way to preserve the floor of the premises in its current condition, and to arrange for detailed testing of the floor.
Three procedures BC’s solicitors could use to achieve their instructions are:

· order to inspect and test property

· order to preserve property

· interim and/or interlocutory injunction

4. (4)  Specify the Supreme Court Rules applicable to each of these possible procedural remedies.

5. (5)  ) Outline the arguments that BC would use to seek an interim or interlocutory injunction.

6. (6)  What do you think the court would decide, and why?

Now assume that the Court granted BC an interlocutory injunction restraining any remedial or removal work on the floor for a period of 8 weeks to enable BC’s engineering expert to undertake tests and inspections as to the structural strength/adequacy of the floor. Assume that you now act for BTT, which instructs you that it desperately needs to begin remedial work on the floor without delay, and cannot afford to wait 8 weeks. The uncompleted building works are seriously obstructing access to the existing loading bay and causing drastic delays in deliveries and therefore loss of customers and profits (taxi truck services being very time- sensitive), and DTT’s bank is threatening to implement default procedures in relation to the loan DTT took out to finance the building works.

(7) What procedures would you advise DTT to implement?
(8) What arguments would you advance to the Court?
(9) What arguments would you anticipate BC might advance? (10) What do you think the court would decide, and why?

[20 marks]

QUESTION 2

Consider the fact scenario regarding freewheeling Darwin property investor Kylie Risk

Assume that Kylie has heard that Peruvian backpacker handyperson (and defendant) Jaime Iglesias has returned to Darwin but is lying low to avoid service of a writ on him. She has been told, however, that he is a frequent user of Facebook and has his own page with lots of posts and photos of himself engaged in a range of activities. Kylie has also heard that he has been staying on an irregular basis at various Airbnb premises run by another Darwin property investor Bob Symes, with whom she is vaguely acquainted. However Bob won’t confirm this fact and Kylie suspects he may be protecting Jaime so he can also use him for dodgy cheap building work.

Kylie instructs you about these developments and seeks your advice as to how she can go about getting Jaime served with the writ.

1. (1)  Advise Kylie of how she may go about obtaining an interlocutory order for substituted service under the NT Supreme Court Rules. Cite relevant cases and principles and indicate what evidence would be needed to obtain an order for substituted service on Jaine:

1. Via his Facebook page;

2. By personal service on Bob Symes.

2. (2)  Draft the summons and affidavit/s necessary to obtain these orders for

substituted service. Omit formal parts but include the header.

[20 marks]

 

 

 

 

 

QUESTION 3
Answer ALL of the following 5 sub-questions. Each sub-question carries 4 marks, for

a total of 20 marks.

1. (a)  Leaving aside interlocutory applications, list all court documents/forms that would be filed in the Court Registry in a typical Supreme Court proceeding in the Northern Territory seeking damages, from commencement of proceedings through to final judgment on liability and damages (but not including enforcement steps). Specify the relevant time limits for filing and/or serving each Form and the applicable Rule.

2. (b)  Outline the relevant Rule/s and principles governing claims for discovery before proceedings.

3. (c)  Discuss, with examples, the various types and sources of limitations upon jurisdiction (both time and amount) of the various courts dealing with civil litigation under Northern Territory (not federal) law. Outline the principles and cases governing extension of limitation periods in the Northern Territory.

4. (d)  Outline and briefly discuss the procedures available to a plaintiff who suspects that a defendant may be about to flee the jurisdiction of the Northern Territory or to hide assets, dispose them or remove them from the jurisdiction. Specify the Court Rule, statutory or other source of each such procedure and any applicable major constraints. You need deal only with the Supreme Court, not the Local or Federal Court.

5. (e)  In McCabe v British American Tobacco Australia Services Limited [2002] VSC 73, it emerged that the defendants had managed, during a short period when there were no negligence claims on foot against British American Tobacco (BAT) by smokers who had contracted cancer and other (allegedly)

3

[20 marks]

smoking-related illnesses, to destroy by shredding almost all copies of relevant documents they possessed, especially expert reports which may have shown the extent of BAT’s knowledge of the health effects of smoking. However, copies of most of these documents were forwarded to and retained by a tobacco industry body in the United States. Are those documents discoverable by BAT? Discuss the relevant principles and cases. What other interlocutory procedures might you utilise to pursue these documents? Note that the Victorian Supreme Court Rules are relevantly identical to the NT Supreme Court Rules.

END OF PAPER/ASSIGNMENT

 

 

 

properly footnoted at the bottom of each page.  Referencing and citations MUST accord with the style as set out in the Australian Guide to Legal Citation, 3rd edition.

 

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