Civil Procedure Assignment

I. Discuss the preliminary issues for Algernon to consider if he wishes to seek redress for his injuries

A. Cause of Action

1. Negligence

For Algernon to pursue a claim in negligence 3 elements must be satisfied as set out in the wrongs act:

1. A duty of care is owed
2. That duty is breached
3. Breached has caused the aggrieved party to suffer damage through loss or injury.

As Bunbury was in control of the vehicle when it crashed, it is likely Algernon may have a claim against him for the injury suffered. Additional facts also seem to indicate that a relationship exists between Bunbury and WO which may provide grounds for a claim against WO on vicarious liability, if Algernon can establish Bunbury was an employee and the crash occurred in the course of employment or, if he was an agent, in the course of agency.

Information regarding the nature of his employment could be established through preliminary evidence.

2. Breach of contract

Algernon may also be able to seek a pursue a claim for breach of contract against WO directly. To substantiate a breach, three elements must be satisfied

1. A legally binding agreement was in place
2. A party to the agreement breached a term of the contract
3. That breach caused a loss to the other party

The facts indicate the new legislation from the charter tours Act requiring a transport service provider to provide ‘a safe vehicle to be implied into every contract for transport services.’ If Algernon can establish a relationship between themselves and WO as the transport service provide, then it is likely a breach of the implied term could be substantiated.

In WO’s defence, they may argue that they had gone through the reasonable steps of completing the service two months prior, therefore shifting blame to automotive repairs. If a Magistrates’ Court (MC) proceeding, under order 11.01, WO could subsequently join automotive repairs as third parties to the claim and seek to indemnify themselves.

B. Other Preliminary issues

1. Standing and Capacity

For a civil proceeding or claim to proceed in Victoria, the plaintiff must have sufficient evidence such as injury or loss – otherwise known as ‘standing’. The facts of the case, indicate that Algernon has suffered significant injury as a result of the crash.

The plaintiff must also be of sound mind and must have attained legal age of majority. As per the facts, Algernon is likely to have attained legal age of majority as he was dreaming of attending university under the mature age scheme. However, the significant injuries to Algernon may inhibit his ability to be considered a plaintiff of sound mind. If Algernon is deemed to be disabled under the definition found in MCR, then order 15 provides for the procedure to commence proceedings as persons under a disability.

2. Jurisdiction

Under the MCA, the magistrates can hear negligence claims and contract disputes where claims are no more than $100 000.4 VCAT is also capable of hearing such disputes however is only able to compensate up to $10 000 for personal injury claims.5 The County and Supreme courts are able to hear matters without monetary limitations.

Commencing a claim in the wrong court could carry a heavy penalty. Under order 63A.24(1) the CCR provides that if a plaintiff succeeds in recovering half or less than the jurisdictional limit of the Magistrates Court for a claim in the County Court, the plaintiff is only entitled to costs on the Magistrates Court scale less the additional costs properly incurred by the defendant due to the plaintiff making the claim in the County Court instead of the Magistrates Court.

Based on the facts, it would be advised that Algernon goes to the MC to avoid the risk of not meeting the threshold of $100 000 and potentially losing out on monies if their claim succeeds.

3. Service

To commence proceedings in the Magistrates’ court, Algernon must serve an originating process, such as a complaint, on the defendant or defendants.7 The complaint must also be accompanied with a statement of claim. Under order 13.01, the statement of claim outlines the plaintiff’s claim against the defendant. Furthermore, personal injury claims comply with order 6.05, whereby the complaint must be served in accordance with the TAC.8 MC allows for two types of delivery – personal or ordinary.9 Depending on which parties Algernon decides to make a claim against will affect the method of service.

If Algernon decides to make a claim against WO, he will be able to rely on the SEPA which effectively creates a national jurisdiction.10 Allowing Algernon to serve WO as if they were in Victoria.

For potential defendants outside of Australia, such a Cecily, order 7.09 of MCR Service must be personal or according to the law of the country where service is to be affected - whichever is easier.Furthermore, 7.02 sets out conditions that must be met in order to serve an originating process, which includes when the claim is founded on a tortuous act or omission.7.05 also provides that an accompanying notice informing the person on the grounds alleged, the scope of jurisdiction and the person rights.

As Algernon is likely to have a claim of negligence, they would be able to serve Cecily the complaint so long as service is in accordance with the MCR and the laws of Temasek.

4. Limitation period

For Algernon to pursue an action in court, whether in tort or breach of contract, they must do so within 6 years.

5. Preliminary Discovery

Under order 32.05, preliminary discovery enables the applicant to make reasonable enquiries to obtain information and relevant documentation to assist in identifying the possible defendant or defendants and if the applicant has a particular cause of action against the potential defendant or defendants.

Algernon may request documentation regarding the relationship between WO and Bunbury, in order to establish whether WO could be party to the claim of negligence. Which would ultimately give rise to a claim of vicarious liability. Furthermore, documentation may be requested regarding the relationship between Cecily and WO.

To ascertain a possible breach of contract, Algernon could request for an oral examination or documentation from automotive repairs to provide information on the faulty brakes. If Automotive repairs had in fact notified WO of the fault, and WO did nothing about it, then that could give rise to sufficient grounds for relief.

II. Considerations for costs, expediency and convenience

Pursuing both claims separately is likely to delay any chance of a speedy resolution, therefore Algernon may want to consider a joinder of claims. Under order 9 of MCR A plaintiff may join more than 1 claim against a defendant so that the claims can be tried in the same proceedings.16 To most affectively pursue this case, Algernon should choose join the two claims against WO. Pursuing the other defendants like Bunbury - who succumbed to their injuries - and Cecily will likely prove inconvenient and cost ineffective. Algernon would need to rely on getting relief from Bunbury’s estate and a claim against Cecily would need to be in accordance with SEPA and MCR ‘service out of Australia’ procedures. By forgoing the other defendants and joining the claims, Algernon would be able save time and money.

Also under order 9 is the joinder of parties, whereby Multiple plaintiffs and/or defendants may be joined in one proceeding if certain requirements are satisfied.17 9.02 allows for permissive joinders where if each of the plaintiffs’ claims arise from the same transaction or occurrence, and if there is a common question of law or fact relating to all plaintiffs' claims.

This could be another avenue for Algernon to cut costs, as both claims arise out of the same occurrence.

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