LLB306 Civil Procedure Research and Problem Solving Paper Assessment

The Assessment Questions and Tasks 

All four (4) questions must be answered as they collectively constitute the Research and Problem Solving Paper. Remember, marks are awarded for not just stating facts but for developing arguments with support when answering the questions. When answering those questions, include references to all relevant legislation, cases and rules of court. The Uniform Civil Procedure Rules 1999 (Qld), subordinate legislation under the Supreme Court of Queensland Act 1991 (Qld) (“rules”), applies to the Research and Problem Solving Paper Questions.

To: Junior Solicitor 

From: Senior Associate 

CC: Senior Partner 

Date: 25 November 2022 

Subject: Frank Flopp File 

Please find my file notes for the Flopp matter attached. Included in those notes are a series of tasks (on page 5 of this memo) that I need you to undertake. I will be away until 22 January  2023. 

When I am back in the office, I need to see a 2,000-word memo responding to the tasks that I have outlined. If we commence proceedings, we will brief counsel to prepare originating  process so refrain from drafting forms and pleadings. I do expect correct citation to the  relevant civil procedure law. 

Yours, 

SA 

File: 2022-FG12 Frank Flopp, also trading as ‘Floppy Fins’ 

Full Name: Frank Michael Flopp 

Address: 88 Ocean St, Simpsons Creek, QLD 

DOB: 19/09/1992 

Date of Client Commencement: 5/09/2022 

Date of Current Matter: 5/09/2022 

Information on Floppy Fins 

Frank Flopp operates a business as a sole trader called ‘Floppy Fins’. The business was started by Flopp as a private pet-minding enterprise in November 2014 while he was undertaking degrees in oceanography and marine biology at Golden Sun University. At that  time, Flopp made a small amount of money from the business, largely during university holiday periods, minding pets of some colleagues, acquaintances, friends and friends-of friends. His business grew substantially through word of mouth and social media in the  following years. 

In 2015 he adopted the business name ‘Floppy Fins’ which catered largely to owners of exotic fish. The business then expanded in 2016 to include care, advice and minding for all kinds of standard and particularly exotic pets in South-East Queensland and Northern New South Wales. Flopp recruited some of his friends and colleagues from the oceanography and marine biology departments to cater for the growing demand from 2016-2018. In 2016, he also enlisted the services of Edgar Lemon, his cousin, who helped establish a website and platform for the business.

Contract with Gaggle Australia Pty Ltd 

In June 2018, Flopp entered into a written agreement with corporation Gaggle Australia Pty Ltd (‘Gaggle’). Gaggle is an information management company and subsidiary of US technology giant Gaggle Enterprises Inc. Gaggle approached Flopp as they were interested in expanding the range of services they offer through their web search platform to include pet services, providing a one-stop-shop connecting pet owners with pet services and products across Australia. Under the agreement, Floppy Fins would be a preferred provider in Gaggle web searches and would be exclusively licensed to a range of Gaggle’s communications, marketing and media technology. Gaggle would take a commission of 5% on all bookings made with Floppy Fins. The agreement was to run until 30 June 2024. 

The online booking and communications aspects of Floppy Fins were fully set up on  Gaggle’s platform on 1 July 2018. The arrangement helped grow the business significantly  from 2018-2021. The net profits of the business based on the information provided to us by  Flopp were as follows: 

Financial Year Net Profit ($AUD) 

• 2014-2015 5,000.00 
• 2015-2016 12,500.00 
• 2016-2017 30,500.00 
• 2017-2018 35,000.00 
• 2018-2019 72,000.00 
• 2019-2020 91,500.00 
• 2020-2021 104,000.00 

*bold denotes years of agreement with Gaggle 

Flopp’s financial modelling indicates that the business would have been likely to continue to increase its net profits in the arrangement with Gaggle by $10,000 per year over each of the following three years. 

The 17 June incident 

On 17 June 2022 an incident occurred as part of a routine visit by Flopp to the property of a  first-time client, Gary Glitter, the owner of a pet crocodile named “Sweetheart”. The agreement was to care for “Sweetheart” with one daily visit for 6 weeks from 17 June 2022 to  29 July 2022. Glitter paid the full amount in advance. In the online communication with the  client, Glitter provided detailed care instructions and assured Flopp that the crocodile was  “almost blind” and “had no teeth” and was always kept in a specially designed, secure aquatic  enclosure on the property. However, in his haste to reach the airport to leave for his holiday  in Madagascar, Glitter forgot to close the gate of the enclosure when he left.  

When Flopp visited the property to feed and care for “Sweetheart” on the 17 June, he was  met with the unrestrained animal in the house. Flopp says he did his best to lead the crocodile back to its enclosure with food. However, the crocodile made a lunge at the food and in doing  so bit Flopp’s hand. While “Sweetheart” indeed had no teeth, the force of the bite crushed several bones in Flopp’s hand.  

The medical costs of treatment for the hand were $12,550. Flopp is also suffering from  depression and post-traumatic stress associated with the incident. He is currently seeing a  psychologist. The fees are $195 per session. The psychologist estimates that Flopp will need at least 20 weekly sessions of treatment. He will also be unable to undertake his usual activities with the business during this period. This is estimated to cost his business $950 per  week in revenue. The pain and suffering associated with the incident can be estimated at  $120,000. 

Current relationship with Gaggle 

There are two further present issues that Flopp has brought to our attention. The first is that a video of the crocodile incident from what appears to be private surveillance footage taken at Glitter’s house has unexpectedly surfaced on Gaggle’s image and video-sharing site “Checkmeout” on 1 July 2022. Flopp contacted Gaggle’s head office three times by phone (on the 6, 13 and 20 July 2022) to request that it be removed, but the requests were denied without explanation. Flopp has since discovered that Gaggle have been using a number of images and video from Floppy Fins’ services in what he believes is an unauthorised way. 

Photos and video of pets taken by Floppy Fins’ minders or by cameras set up by clients, and intended solely for the private viewing of clients, were transferred by Gaggle to the public domain through “Checkmeout” and tagged “hysterical pet videos”. Flopp believes that this is a serious breach of confidentiality and good faith by Gaggle, particularly as this could  seriously erode the trust and confidence he has built with his clients. His further demands for  Gaggle to cease this activity, in emails, have not been answered since 18 August 2022. The relationship with Gaggle appears irreparable and Flopp is inclined to end the relationship with Gaggle and seek reparation for the expected lost profits. 

Edgar demand 

Another issue is that his cousin Edgar has written to Flopp demanding $10,000. Flopp and Edgar had a falling out in 2017 over a rugby jersey (worth about $400) that Edgar borrowed from Flopp and never returned. Edgar now says that Flopp owes him $10,000 because he claims that Flopp on-sold parts of the design of Edgar’s original web-platform for Floppy  Fins to Gaggle without his permission. Flopp didn’t keep a record of the agreement or  transactions with Edgar but believes that the demand is baseless as he remembers paying  Edgar an agreed amount for his work in February 2016 and none of the design of Edgar’s  platform was transferred to Gaggle who were using their own much more sophisticated web  platform. 

Relevant contractual terms 

The further relevant clauses of the contract between Flopp and Gaggle are:

19 Termination 

19.2 Either party may terminate this agreement with immediate effect by providing written notice of the termination to the other party, if: 

1. a) that party has materially breached any of its obligations, or has done anything that in the reasonable opinion of the aggrieved party is likely  to be prejudicial to their interests; and 
2. b) the failure or breach continues for a period of 14 days after the aggrieved party provides notice to the other party detailing the failure or breach.

40 Confidentiality 

Each party undertakes to maintain as confidential all know-how and all  technical, commercial and personal information obtained pursuant to this  agreement and to use this information exclusively for the purposes of the  agreement. 

45 Good Faith 

The parties to this agreement promise to execute and fulfill their obligations in  good faith, expressly promise to treat each other fairly. 

Other relevant information 

• Gaggle Australia Pty Ltd has a registered address at 38 Nikolai St, The Rocks, Sydney, NSW. Its directors all reside in Sydney. 
• Gaggle Enterprises Inc is headquartered at 5 Taras Bulba Lane, California, USA. 
• Gary Glitter has not returned from his holiday in Madagascar and there is no indication of his whereabouts or likely return. His home address is 12 Music Avenue, Broadbeach, QLD. Flopp has an email address and phone number for Glitter in the Gaggle system, but all attempts at contacting him through those means have failed. Since the minding job was completed by Floppy Fins for “Sweetheart” in July 2022, the home seems to be regularly visited by at least 3 unidentified persons. They have been seen occasionally borrowing Glitter’s collection of jet-skis and motorcycles from his garage. In a chance conversation, one of the persons going by the name of “Mary” has indicated that Glitter allows them to “borrow his stuff in exchange for feeding his gator”. 
• Australia has a service of process convention with the USA but not with Madagascar. 
• Flopp’s cousin Edgar is unemployed. He still resides at Flopp’s aunt’s house at 13 Venit St, Simpson’s Creek, QLD, but spends most of his time at his girlfriend’s rented share-house at 15 Cherry Lane, Newstead, QLD. His main assets are his 3 laptop computers and mobile phone.

Your Task 

Question 1 

• Advise whether there are facts that would substantiate a cause of action by Flopp against any of the following parties, and briefly any preliminary issues that should be taken into  account before commencing proceedings. 
• Gaggle 
• Gary Glitter 
• Edgar Lemon 

Question 2 

• Provide an argument based on interpretation of the UCPR on whether the parties and causes of action identified in question 1 should be joined in a single proceeding. 

Question 3 

• Advise which court the proceedings should be commenced in, providing reasons and any details regarding quantification of damages where relevant. 

Question 4 

• Advise the process that should be undertaken to serve each of the following parties with originating process (in the case that Flopp instructs us to commence proceedings against any of them): 
• Gaggle 
• Gavin Glitter 
• Edgar Lemon