5210LAW - Week 12 Workshop copy PDF

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Workshop week 12...

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5210LAW - Week 12 Weekly Workshop PART A 1. What causes of action he might have against which parties and what court to commence proceedings in Rasputin has suffered a serious injury proceeding his heart attack. He has multiple causes of action against different parties that are involved, the actions he currently has is as follows; - Personal Injury against Zotar Pty Ltd for the build-up of fatty residue around Rasputin’s heart which lead to his heart attack - Potential personal injury claim against Colesworth which is owned by Eastfarmers Pty Ltd for supplying a product which has had multiple heath concerns by consumers For all personal injury claims, Rasputin has three years since the personal harm or knowledge of the personal harm1 to bring an action. Rasputin suffered his heart attack on the 19 February 2017, with Rasputin and Garry seeking advice concerning the personal injury on 12 June 2018. As Rasputin is within the limitation period, if the personal injury cases against Zotar, Colseworth and Eastfarmers are valid, then Rasputin can bring an action. Currently, Rasputin is not able to work, which is preventing him from earning his $75,000 per annum salary at his current position, plus the $25,000 per annum of rehabilitation and support costs. The rehabilitation specialist advised that Rasputin will not be able to return to his current position, which means that he will lose $100,000 (including rehabilitation and support costs) this year due to the personal injury. As it is under $150,000, the current actions are able to be bought within the Magistrates Court2.

2. Any preliminary matters that need to be dealt with prior to commencing proceedings There is a number of preliminary actions Rasputin will need to take into consideration before commencing proceedings. Rasputin will first need to establish and submit the claim with Zotar Pty Ltd and Eastfarms being joint defendants. Rasputin will also need to assess the limitation period of three years, this has the potential of being extended by the court3. Rasputin is within the limitation period. Rasputin should also consider joining Zotar and Eastfarmers as joint defendants. Zotar and Eastfarmers proceedings will have a common question of law or fact that may arise in each proceeding4 and the proceedings concerns that same transaction and series of events5.

3. Which actions against which parties would be most prudent 1 Limitation of Actions Act (QLD), s11. 2 Magistrates Court Act 1921 (QLD), s4. 3 Limitations of Actions Act 1974 (Qld), s31. 4 UCPR r65(1)(a). 5 UCPR r65(1)(b).

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While Rasputin has the potential to bring a personal injury claim against Zotar and Eastfarmers, it would be most prudent to bring a claim of personal injury against Zotar as they are the Australian manufacturers of the “No Bull” energy drink, which has a direct correlation to Rasputin’s injuries.

PART B Rasputin has served a Statement of Claim and Claim to Zotar in regards to Personal Injury for the harm caused due to the ingredients in the energy drink. As Zotar is a company, the SOC and Claim must be served either to the registered office or a personal service to a director of the company6. The current SOC and Claim was served at the CEO of Zotar’s residence7, it was given and left at the CEO’s residence as he was the intended person to be served8. The serving of the SOC and claim was done correctly. It is now Zotar’s responsibility to submit a notice of intention to defend the claim9. This notice of intention to defend must be completed within 28 days of being served, otherwise Rasputin and the court can come to a default judgement10. The SOC and claim was served on the 1 September 2018, with it now being 30 September 2018, out of the 28 day period. A notice of intention to defend must be in writing and given to the plaintiff, which in this situation is Rasputin11. With the CEO of Zotar making a statement in the paper that he will defend Zotar and it’s products, is not a sufficient notice of intention to defend. With no notice of intention to defend, Rasputin can use the affidavit as proof of service and apply for a default judgement12. It should be noted, that if Zotar provide written notice to defend before the default judgement, this can be admitted and a proceeding and trial can occur13. PART C Prior to proceedings, there is a duty for all parties to disclose documents which each party are currently in possession and has a direct correlation to the proceedings14. Zotar has currently not disclosed the ingredient list for “No Bull” within the disclosure documents. It can be assumed that the ingredient list is under Zotar’s control15 as they have to use this ingredient list to produce and make the energy drink. This ingredient list has a direct connection to the personal injury allegation16 as Rasputin is arguing the ingredient of stickleworm caused his heart attack. The ingredient list would not be considered a document exempt from disclosure17. As Zotar has not disclosed the ingredient list, Rasputin can ask the court for a court order disclosure, as there is a high likelihood that the duty of disclosure by Zotar has 6 Corporations Act 2001 (Cth) 109X.

7 Ainsworth v Redd (1990) 19 NSWLR 78. 8 UCPR r106(1). 9 UCPR 134-135. 10 UCPR r137. 11 Groves v Australian Liquor, Hospitality and Miscellaneous Worker’s Union [2004] QSCC 142. 12 UCPR r120. 13 UCPR r138. 14 UCPR 211 15 Erskine v McDowall [2001] QDC 192.

16 Robson v REB Engineering Pty Ltd [1997] Qd R 102 17 UCPR r212

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not been complied with and is within the interest of justice to be disclosed18. Zotar will only be permitted to not disclose the ingredient list with court’s leave19. If Zotar still fail to disclose the ingredient list, then they can be liable for contempt of court, cost of court and Rasputin can apply for a stay of proceedings. PART D 1. What he needs to consider when entertaining Zotar’s offer. Zotar has currently made an offer of $120,000 to Rasputin to settle. This offer is currently valid of 14 days20 and Zotar is not able to withdraw this offer at all within that period. Zotar’s offer to settle in the current proceeding is valid as he has served it to Rasputin in writing stating the amount and with it being without prejudice21. It is Rasputin’s decision whether he wants to accept the current offer, but he should be aware that if he was to not accept the offer and proceed with the trial and Rasputin obtains judgement no more favourable than the offer, then Zotar must pay Rasputin’s costs on standard basis to the date of service of the offer and Rasputin must pay Zotar’s costs on the standard basis from date of service of offer22.

2. What arguments to make to the court in opposition to the application Zotar also made an application that Rasputin amend his plead to contributory negligence. This application must be in an approved form (Form 5), and must serve the application at least three days before day set for hearing. As the application was made on the second day of the court proceedings, Zotar has not appropriately complied with the application process, making his application invalid.

18 UCPR r233. 19 UCPR 225. 20 UCPR 355(1). 21 UCPR r353(3). 22 UCPR r361.

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