Civil Procedure Case Study

Question 1.

I. Cause of action/ Claim / Relief

The following matter illustrates two causes of action Clark may pursue in order to recover his financial loss. The first possible cause of action is under the tort of negligence and the second is under a breach of contract. Moreover, a claim may be substantiated under the tort of negligence if the following three elements are met:

1. A duty of care was owed
2. The breach of said duty has been made by the tortfeasor
3. The breach causes the aggrieved person to suffer damage through either loss or injury

Paragraph 15 of the matter states Clark provided FINES with explicit written instructions about releasing the escrow money only when he has presented FINES with written confirmation about receiving the Spider. However, paragraph 20 states FINES did not fulfil this duty, and confirmed the release of the escrow money despite not receiving written confirmation from Clark about the delivery of the Spider. This illustrates FINES has significantly breached their duty of care, leading to Clark’s financial loss, a form of damages which also meets the three elements under tort of negligence.

In addition, a claim may also be substantiated under a breach of contract if the following three elements are met:

1. A legally binding agreement was in place
2. One party has breached that legally binding agreement
3. That breach has caused a loss to the other party

Paragraph 7 of the matter states AussieBrokers is the agent for Helix Enterprises and work with one another thus forming a work relationship, ultimately this leads to the contract signed by Clark at the AussieBrokers office in paragraph 9. The contract signed by Clark is a legally binding agreement to both AussieBrokers and Helix Enterprises. However, a breach of contract has occurred when AussieBrokers failed to deliver the Spider at Clark’s residence, leading to Clark’s loss, a financial loss where he has paid for goods that have not been delivered. Clark may initiate a claim against FINESdue to their negligence of releasing the escrow money, and a claim against AussieBrokers and Helix Enterprises for their breach of contract as they failed to deliver the Spider.

II. Standing

In Victoria, in order for Clark to initiate proceedings he must have standing, this means a sufficient interest in the matter, such as loss or injury. In this matter, it is evident Clark has suffered significant financial loss given the “all-in” purchase price of the Spider is $115,000.

III. Capacity

In order for Clark to have capacity to sue and initiate a claim against another party, the aggrieved party must be of legal age and cannot be suffering any form of mental illness or conditions.

Paragraph 1 states Clark is 19 years old and is an odd character but not insane, therefore Clark is of age and is of a sound mind.

IV. Limitation Period

Under the Limitation of Actions Act 1958 (Vic) s5 highlights in order to pursue action under a tort of negligence or breach of contract, the plaintiff must action their claim within 6 years of the breach or tort occurring.3 Considering Clark is wishing to pursue action at this time, he is within the limitation period, however if he chooses to pursue the matter in 2027, he may be out of time.

V. Preliminary Discovery

A preliminary discovery will enable Clark to obtain information or documents that are relevant in making his claim. Rule 32.03 highlights Clark may apply via the courts if he wishes to initiate proceeding to ascertain the defendant is described for the purpose of commencing proceedings against the defendant. Clark may not need to go through the process of a preliminary discovery, given he has a copy of the contract, which will help with his claim against AussieBrokers and Helix Enterprises, however he may wish to have a preliminary discovery with Strike Fast Delivery Pty Ltd and gather more information about their failure to deliver the Spider.

Additionally, rule 32.08 MCR/CCR/SCR highlights Clark can seek discovery, which may also require oral examination before a court or judge. Clark may do so via an originating motion and summons, which will also need to be supported by an affidavit. Rule 32.05 also highlights Clark may apply a preliminary discovery to discover which evidence may be useful in court, and also assist Clark in determining whether or not he should initiate a claim.

VI. Jurisdiction

Under the Magistrates’ Act 1958 (Vic) s100 highlights the Magistrates Court has the authority to listen to matters where the value does not exceed $100,000.4 The escrow money given to FINES is $103,000 along with a standard fee of $1,000 which is Clark’s loss. This means the Magistrates Court cannot hear Clark’s case given his loss is evidently higher, therefore the County or Supreme Court can hear Clark’s case given there are no monetary limits within both jurisdictions as stated under the County Court Act 1958 (Vic) s37 and s85 of the Commonwealth Constitution.5 Ultimately, the Victorian County Court may be the most appropriate to hear Clark’s matter.

VII. Services

In order for Clark to begin proceedings in the Victorian County Court the following elements must be met as stated under the County Court Civil Procedure Rules 2018 (CCR)

1. Rule 4.02 highlights a writ or an originating motion may be used during proceedings.
2. Rule 5.04 of the CCR highlights the writ of originating motion must be accompanied by an indorsement of claim, which will then be served to the defendant.
3. Rule 6.02 highlights the mentioned claim must be personally served to the defendant.
4. Rule 6.03 highlights the service may be completed by leaving a copy of the origination motion to the defendant or within their presence.

Clark must follow the steps mentioned above in order to initiate a proceeding, however these proceedings will only apply to AussieBrokers who resides in Western Australia and FINES who reside in Melbourne.

In addition, rule 7.02 highlights a defendant may be served outside Australia without the court’s leave and rule 7.05 highlights when informing the defendant, the notice must include the County Court’s jurisdiction. Rule 7.09 also highlights the service given to an international defendant must be via the country’s own laws that the defendant resides in. 7Ultimately, in order for Clark to serve Helix Enterprises, he must follow the laws in Maruana.

Question 2.

The most appropriate avenue for Clark to pursue is to initiate a claim via the Australian Financial Complaints Authority (AFCA). The AFCA would be appropriate due to FINES licensing requirements, which requires them to be a part of the financial services industry, this means FINES would also have an Ombudsmen. 8 Given Clark is a consumer, he will be eligible to initiate a claim, complaints made also require no fee which is cost efficient for Clark. In addition, Clark may also initiate a hearing with VCAT about the goods and services provided by FINES.

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