Civil Procedure and Advise Employee Issue
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Issue
Solution
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ADVISE EMPLOYEE
Issue
Solution
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ADVISE EMPLOYEE
Issue
SolutionQuestion 1.1
SERVICE
- Personal service o R6.02 An originating process shall be served personally on each defendant o R6.03 Personal service is effected by leaving a copy of the writ with the Defendant or putting it down in their presence if they do not accept a copy o Personal service is not effective in this way because the plaintiff has failed to fulfill this requirement
- HOWEVER - Common Law Pino v Prosser o Rules states that a document can be left with a spouse on the understanding that it will be brought to the individuals attention o In reference to the facts, Anna, Angelo’s wife, explicitly stated that she would give the envelope to Angelo
JURISDICTION
- Victoria is not a convenient forum for the proceeding
- The Defendant can challenge the appropriateness of the Supreme Court under r7.05(2)(b)
- Defendant may argue that there is a more appropriate court to hear the proceeding; the NSW Supreme Court. It is unlikely that the courts will find that the VSC is a clearly inappropriate court.
- However, the defendant must also show that determination in the VSC would be oppressive and vexatious (Oceanic Sun Line v Fay and Voth)
Question 1.2
Issues with statement of claim
- Format of the document o ‘In the Supreme court of Victoria’ should be on one line and ‘at Melbourne’ should be below on another line o The addresses of each party should be omitted o The document number should be written ‘89473/09’ o It should say ‘-and-‘ instead of ‘v’ between the parties names o There needs to be tram tracks outlining date of document and who the document is filed on behalf of
- Details of the claim o Need to be numbered o There needs to be particulars describing the details of the event
Issue
Solution
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ADVISE EMPLOYEE
Issue
Solution
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ADVISE EMPLOYEE
Issue
SolutionQuestion 1.1
SERVICE
- Personal service o R6.02 An originating process shall be served personally on each defendant o R6.03 Personal service is effected by leaving a copy of the writ with the Defendant or putting it down in their presence if they do not accept a copy o Personal service is not effective in this way because the plaintiff has failed to fulfill this requirement
- HOWEVER - Common Law Pino v Prosser o Rules states that a document can be left with a spouse on the understanding that it will be brought to the individuals attention o In reference to the facts, Anna, Angelo’s wife, explicitly stated that she would give the envelope to Angelo
JURISDICTION
- Victoria is not a convenient forum for the proceeding
- The Defendant can challenge the appropriateness of the Supreme Court under r7.05(2)(b)
- Defendant may argue that there is a more appropriate court to hear the proceeding; the NSW Supreme Court. It is unlikely that the courts will find that the VSC is a clearly inappropriate court.
- However, the defendant must also show that determination in the VSC would be oppressive and vexatious (Oceanic Sun Line v Fay and Voth)
Question 1.2
Issues with statement of claim
- Format of the document o ‘In the Supreme court of Victoria’ should be on one line and ‘at Melbourne’ should be below on another line o The addresses of each party should be omitted o The document number should be written ‘89473/09’ o It should say ‘-and-‘ instead of ‘v’ between the parties names o There needs to be tram tracks outlining date of document and who the document is filed on behalf of
- Details of the claim o Need to be numbered o There needs to be particulars describing the details of the event