Monash-LSS-Sketchnotes-files ldr-problems PDF

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Monash Law Students’ Society

Student Tutorials Program Practice Problems

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IMPORTANT!INFORMATION!FOR!STUDENTS! ! 1.! This!booklet!contains!a!number!of!practice!questions!to!be!used!throughout!the!LSS! Student!Tutorials!Program.! ! 2.! Hard!copies!of!the!Practice!Problems!in!this!booklet!will!NOT!be!distributed!in!LSS! tutorials.!It!is!students’!responsibility!to!print!out!this!booklet!and!bring!it!to!LSS!tutorials! or!to!access!it!digitally!on!a!laptop!or!tablet!during!LSS!tutorials.! ! 3.! Wherever!possible,!student!tutors!will!display!the!Practice!Problems!on!a!digital! projector!during!tutorials.! ! 4.! Students!are!encouraged!to!read!through!the!Practice!Problem!and!formulate!ideas!and! arguments!before!attending!LSS!tutorials.!This!allows!more!time!to!be!devoted!to! discussing!possible!responses!and!improves!the!quality!of!discussion.! ! 5.! It!is!left!to!the!tutor’s!discretion!as!to!whether!and!when!a!Practice!Problem!will!be! covered!in!LSS!tutorials.!Not!all!of!the!Practice!Problems!in!this!booklet!may!be!covered! in!LSS!tutorials.! ! 6.! Where!Practice!Problems!have!been!taken!from!an!external!source,!the!source!will!be! clearly!referenced!at!the!top!of!the!Practice!Problem.!The!copyright!for!these!materials! remains!with!the!original!publisher.! ! 7.! Tutors!will!not!hand!out!‘answer!sheets’!for!any!of!the!Practice!Problems!contained!in! this!booklet.!Practice!Problems!will!be!discussed!in!tutorials!only.! ! 8.! Tutors!will!not!grade!or!provide!feedback!on!detailed!written!answers!to!these!Practice! Problems.!If!you!have!a!question!with!a!particular!Practice!Problem,!you!are!encouraged! to!raise!it!in!the!tutorial.! ! 9.! It!is!against!LSS!policy!to!allow!students!to!eXmail!tutors!for!additional!help.!If!you!have!a! question!relevant!to!one!of!the!Practice!Problems!in!this!booklet,!you!are!encouraged!to! raise!it!during!LSS!tutorials.! ! 10.!If!you!have!any!questions,[email protected]! ! ! ! ! !

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!! 3

Week 3 - Problem 1 – Jurisdiction Henry is a law student who lives in the Melbourne suburb of Hampton. He is a notorious betting man and after a big session watching the races one Saturday afternoon in February 2012 he finally gets lucky on the last race and makes a big win. Accordingly, he decides to take a group of his mates on a holiday to celebrate his windfall. He has not chilled with da boyz for several months as most reside in Sydney. With little travel experience, Henry consults his trusted friend and Sydney-based travel agent Josh, who is the best in the business when it comes to the latest hot holiday destinations. Josh advises Henry to travel to Thailand as he thinks Henry and da boyz will have a lit time at the full moon party. Dubious, Henry mentions rumours he’d heard about the presence of an extreme malaria disease in Thailand that is a particularly perilous. He would not travel there if there was any chance he’d contract the disease. Josh had indeed heard the rumours of the malaria’s prevalence in Thailand and had seen some cases reported in the Thailand Times but decided to reassure Henry regardless given that he makes a lucrative 20% cut on all Thailand tourism packages he sells due to a new Thailand government tourism initiative. Accordingly, Josh unequivocally guarantees that Henry is “100% safe” and ensures there is no real damage in travelling to Thailand. This alleviates Henry’s disquietude. He purchases the tickets and the group leaves for Thailand in April 2012. Henry and his mates have a sick time abroad. However, in June – when he returns – he is diagnosed with malaria by Dr N. Bisby. Due to his illness, Henry is hospitalised and transcends into a coma between June 2012 and May 2015. He comes to you for advice in May 2016, wishing to sue Josh for $250k in negligence and for misleading and deceptive conduct.

In what court should he issue proceedings? Is the FCA an option?

Assume Henry chooses the Victorian Supreme Court. Josh who moved to Thailand in 2014 to pursue a career in politics, seeks to transfer the proceedings to Thailand. Alternatively, he would move them to NSW where his business is still located.

Advise Josh on his chances of success.

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4 Week 4 - Problem 2 – Multiple Parties and Causes of Action

For this problem, assume that Henry has not yet commenced proceedings. He decides to bring claims in negligence and in misleading and deceptive conduct against Josh Two years after, Henry’s arch-nemesis Steph also contracts the malaria after visiting Josh for holiday advice. Josh gave Steph the same assurances re safety.

How should Henry bring these proceedings? Can and should Steph bring proceedings with Henry?

In response to the suit, Josh comes to you and tells you that Henry still owes him $8000 for the balance of the holiday package. Josh also reveals that – whilst he knew of the rumours – he had not heard of a confirmed malaria case since 2004. Indeed, in December 2011 he had consulted Dr Pepper – a malaria expert – who told him that he had nothing to worry about when sending clients to Thailand. Josh wants to bring Dr Pepper into the proceedings to claim a contribution.

Advise Josh as to how he ought to proceed with respect to these issues.

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Week 5 - Problem 3 – Commencing Proceedings NB: facts from Problem 1 apply (unless contradictory facts appear).

Assume Henry decides to commence his proceedings in the Victorian Supreme Court. He seeks your advice as to whether he can – firstly – sue Josh.

Secondly, Henry asks you to assist him in commencing proceedings. What procedural steps are necessary to do this and what documentation is required?

Would your answer be any different if Henry decided to issue proceedings in the Federal Court of Australia?

Assume Henry also wishes to bring an action against Josh in battery. Despite your protests, Josh points to r 8.1 of the Australian Solicitors’ Conduct Rules that states that a solicitor must follow a client’s lawful, proper and competent instructions. What should you do and why?

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6 Week 6 - Problem 4 – Service and Appearance

Henry has commenced proceedings against Josh in the Victorian Supreme Court, filing a writ. As the current Minister for Communication in Thailand, however, Josh is set to tour marginal Thailand constituencies as well as several countries to increase his popularity. Indeed, he soon hopes to be Prime Minister, replacing the current leader. His tour details are published on a MySpace account monitored by his PR team in order to increase attendance and excitement at each stop. After touring Thailand, he will spend a week travelling through an unpublished list of small Lebanese villages. Next, he attends a heavily-guarded conference in Beijing for three days and, after this, his itinerary has him Sydney-bound in an effort to fraternise with his Australian governmental counterparts. He hopes the AFP doesn’t raid his temporary offices looking for confidential information about the high-speed Thailand Broadband Network.

Henry needs to serve the writ on Johs for proceedings to continue. What methods are available and what procedural steps should he take?

Assume Henry elects to serve Josh under the Rules. The process server approaches Josh as his car, aka bantermobile, is parked on the side of a Chinese road, the elusive politician inside. The process server says to Josh through the open window: “These are for you mate. You’re being sued for negligence lol.” As Josh attempts to flee, the process server – an avid basketball player with a highly developed wrist – lobs the writ inside the car.

Josh seeks your advice as to how to challenge the writ’s service. What procedural steps should he take in addition?

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!! 7

Week 7 – Problem 5 – Interlocutory Procedures

Josh issues a third-party notice against Dr Pepper, claiming a contribution of $200k. He has a strong case. Dr Pepper currently owns a doctor’s surgery in Hawthorn, Victoria. However, a real estate agent chum of Josh, informs him that there are rumblings in the industry that Dr Pepper intends to sell the surgery and move to the Bahamas to get his tan on! The surgery is estimated to be worth $600k.

Rumour has it that that Dr Pepper is highly illiquid, having only a few thousand in his bank account.

Josh is concerned that Dr Pepper may not pay his judgment debts and seeks your advice.

The Mad King, Aerys Targaryen, is a little ticked off. Not only did the head of his security services – Jaime Lannister – repudiate his loyalties and decide to kill him (awks), but he also said that Aerys was a “veritable nutjob” in front of a large number of courtiers at a rather rowdy castle party. News of these underground occurrences has since spread like wildfire. Aerys wants to bring an action (in Victoria) against Jaime claiming breach of contract and defamation. To prove Jaime’s disloyalty, he needs access to photographs of him meeting with known conspirators and trouble-makers at the Faucet Inn, Kings Landing. He has it on good authority that Jaime has the sole copy of the photographs and – given his involvement in the conspiracy – Aerys is concerned Jaime will personally destroy the photographs or procure their destruction if informed of the proceedings. Advise Aerys of the procedural steps he could take to preserve this evidence. What would be the consequences for Jaime if he destroyed the photographs?

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8 Week 8 - Problem 6 – Methods of Gathering Evidence

Assume proceedings are on foot between Henry and Josh, but Dr Pepper has not yet been brought into proceedings.

Henry hears of an initiative by the Thailand government that commenced in October 2011. The government sent out letters to travel agents (including those who received their kickbacks) around the world to advise them of the dangers of malaria present in Thailand as well as measures travellers can take to minimise the risk of infection. The government keeps copies of all letters it sends for a 10 year period.

Henry believes that Josh is likely to have received one of these letters and further ruminates that obtaining a copy of the letter would help prove his negligence case. However, if possible, Henry would prefer to avoid proving at trial that Josh knew of the risks.

How might Henry avoid proving this issue? Alternatively, how could he obtain the information?

Assume that Henry commences the discovery process and – two months later – Josh has not responded. What are the consequences for Josh and Henry?

Meanwhile, Josh is vacillating about whether to issue a third-party notice against Dr Pepper. He has no records of the conversation between himself and Dr Pepper. A little bird tells him that Dr Pepper keeps audio recordings of all his meetings.

Josh is eager to get his hands on such information and seeks your advice as to how to obtain it and the likelihood of success.

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Week 9 - Problem 7 – Disposition without Trial Refer to Game of Thrones facts in Week 7 – Problem 5 – Interlocutory Procedures

As above, Aerys has brought an action against Jaime in contract and defamation. The contract action is estimated to be worth $150k and the defamation suit $30k. In response to Aerys’ statement of claim, Jaime applies for summary judgment relating to the defamation suit. How likely is Jaime’s application to succeed? Does have any other options to get rid of the defamation suit? (NB: one essential aspect of the defamation cause of action is that the statement must be untruthful).

Furthermore, Jaime decides to issue a counter-claim for unpaid wages totalling $200k. Aerys promptly issues a defence to this counterclaim. 40 days later, after meeting with Jaime to discuss their current predicament, Aerys decides to discontinue the proceedings. He tells you he is scared that other members of the Lannister family – known for their impish antics – will come after him in retaliation. Advise Aerys as to whether this is possible and his likely chances of successful discontinuation.

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10 Week 10 - Problem 8 – Costs

Henry’s!actions!proceed!to!trial.!At!judgment,!it!is!revealed!that!he!successfully!made!out!the!negligence! claim.!However,!he!failed!to!prove!misleading!and!deceptive!conduct.!He!is!awarded!the!sum!of!$200k!in! damages.!The!negligence!action!took!up!90%!of!the!court’s!time.! ! The!judge!makes!no!ruling!as!to!costs!and!the!matter!proceedings!to!costs!court!for!taxation.!Here,!Josh! leads! evidence! of!an! offer! he!sent!to! Henry! in!order!to! induce! settlement.!This! offer! was!for! $220k! and! was!made!pursuant!to!Order!26!of!the!Supreme!Court!(General!Civil!Procedure)!Rules!2015.! ! !It!is!also!revealed!that!Josh!did!not!continue!to!make!discovery!as!required!under!the!Rules.!Moreover!–! whilst! he! attended! his! courtXordered! mediation! (pursuant! to! r! 50.07)! Josh! refused! to! speak! in! the! mediation.! Assume! he! also,! issued! an! unfounded! counterclaim! in! breach! of! confidence! alongside! his! defence!which!was!later!withdrawn.! ! What%costs%orders%should%the%associate%judge%make%and%why?

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Week 11 - Problem 9 – Class Action NB: for purposes of this problem, again assume no proceedings on foot. One day, Henry receives a letter from some mysterious chap called Mark alluding to the fact that Josh had been giving dodgy travel advice re Thailand for many years. An estimated 97 people have contracted malaria as an indirect result of his assurances.

Moreover, one of his most fierce competitors – Lizzie – has also been sending people to Thailand to enjoy some of the absolute golden experiences. She specialises in selling adventure holidays as she loves to live life with no regrets.

One of Lizzi’s chief advertising strategies is to give a blanket guarantee of safety re diseases and political unrest. Some of her clients – indeed 10 of them – contracted malaria. However, most of the complaints relate to another disease: Glen Fever. Despite this affliction not being lifethreatening, it is a gruelling process to cure and rarely does anyone get off Scot free.

Mark offered to write these names down in a book, but this is estimated to take a ridiculous six years or more, so Henry declines. He does mention that all the victims live in the Greater Sydney area.

Henry has heard about a thing called ‘class actions’ from an ironic newspaper article about Maurice Blackburn running a class action against class-action firm Slater & Gordon. He wonders if he can represent all these injured parties and satiate his desire to do justice for all.

Advise Henry re the legislative scheme that would govern such a proceeding. Are there alternatives? Is representing the class a good idea?

Is it feasible for Henry to extend the class to Lizzi’s clients? How would Henry identify and notify the class, given that he only knows their general location?

Assume a class action commenced in June 2016. In December 2017, four days before judgment, Lizzi offers to settle for $2m. The plaintiffs are expected to win approximately $3m if they win; legal commentators have estimated that there is a 60% chance they will be successful.

Can the proceeding be settled between Lizzi and Henry? How likely is this to occur?

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