Civil Procedure: Journal Of The Legal Profession.
Happy Girls was started by Moore as a pet minding enterprise in the year 2010. After growing a good reputation and getting fund, Moore adopted the business name to cater mostly to exotic fish. She took help from Otto Chubbs to establish a website platform for the business. Moore entered into a written contract with Gogol which helped Moore in expanding her pet service business. The Agreement entered between the parties was to be valid till June 30, 2020 which would entail the exclusivity of Happy Girls. The agreement between the two parties helped them grow financially.
An incident occurred on December 13, 2017 when Moore visited a first-time client Gavin, who owns an alligator named “Grandma”. The agreement was to care for “Grandma” for 6 weeks. Grandma was a toothless and one-eyed which was clearly mentioned in the instructions. The agreement also mentioned that “Grandma” was kept in a designated, secure aquatic sanctuary. McChuter was in a hurry to leave for Dubai and therefore he forgot to close the gate of the sanctuary when he left. Moore tried her best to send the alligator back to the sanctuary but failed to do so. Moore, with food in her hand tried to send the alligator back to the sanctuary but “Grandma” lunged at her and though she was toothless, the force with which “Grandma” jumped at her, she suffered injury and her bones were crushed. The doctor has given Moore an estimate of $915 and due to the injury, Moore cannot join work.
Furthermore, the incident of attack which was captured by a private surveillance was seen at Gogol’s video sharing site “Portrait”. Even Moore tried to contact Gogol to take the image off the website but he did not listen to her and later found that they were tagged at “hilarious pet videos”. Otto, who had initially helped Moore with the website, claimed that a t-shirt which was given to Moore by him has been sold to Gogol’s platform without his permission.
In the present case, Moore wants to bring legal action against Gogol, Gavin and Otto for infringing her privacy and breaching confidentiality, for not respecting the terms of the agreement signed between the parties.
Cause Of Action
Cause of action under the UPCR is not a formal legal document, but a litigator’s take on a legal situation to gauge if substantive area of law can be made out or not. In the present case, a legal action can arise against Gogol , Gavin and Otto.
Clause 19 of the agreement between Gogol and Moore talk about Termination. The clause for termination is as being a material breach of obligations or when one of the parties does anything that is against the interests of the aggrieved party. The agreement between Moore and Gogol also talk about the clause of confidentiality wherein the parties have to respect the privacy of the other party and also use any information for the purpose of the agreement and nothing beyond the scope of the same. Clause 40 of the agreement specifically deals with confidentiality, that is, no information shall be made available to the public domain without the consent of the other party. Clause 45 of the agreement mentions the term of “good faith”, that is, the clause of utmost due diligence shall be meted out to the other party to ensure that the terms of the contract are not reached. Keeping in mind all the three clauses of termination, confidentiality and good faith that has been agreed between the two parties to treat the contact fairly, Moore has a cause of action against Gogol. The terms of the agreement were fixed to ascertain the relation between Gogol and Moore and by uploading the video of attack and tagging the photo in “hilarious pet videos”, Gogol has breached the privacy clause and has acted against the terms of the contract. The terms of the contract entail that the party shall not act in contravention of the best terms of the contract and in cases any party tries to breach, the termination clause shall be applied. Moore has tried every way possible to get in touch with Gogol to ask him to remove the video, but Gogol has not answered his calls. All calls made to Gogol and all emails to him have not been answered. Again, the basic idea behind enforcing the “good faith” clause is to ensure that parties act in accordance with the due diligence clause and try to respect the terms of the contract in the best of their ability. By uploading a personal video to the public domain, and also by not answering the calls and emails, Gogol has breached the terms of the contract and therefore, the contract can be breached in accordance with clause 19 of the Contract because the obligations of the agreements have not been met.
Gavin was the client of Moore and as part of duty, Moore had to take care of the alligator “Grandma” who was toothless and whose care mandated that he be put in the sanctuary which was not taken care of by Gavin because he had left in a hurry keeping the door of the sanctuary open. Due to the failure on the part of Gavin, the door of the sanctuary was left open and as a result Moore found it difficult to put the alligator back to the sanctuary. After trying hard with food in her hand, Moore tried to put the alligator back and as a result she suffered severe injuries due to which she suffered economical as well as psychological harassment. Gavin was negligent in keeping the door open, resultant of which Moore suffered the injuries. Gavin has been in Dubai since the incident and has not returned to Australia. Australian laws have process convention with USA, but not with Dubai. No process convention can place between Australia and Dubai and since Gavin is in Dubai, no charges can be brought against him till he comes back to Australia.
Otto, the cousin of Moore had helped her set up the website and later demands a sum of $10,000 for selling a specifically designed tshirt to the website of Gogol. Moore does not have any record of transactions with Otto but clearly remembers that Gogol has not used any photo given by Otto to Moore because he has his own sophisticated website. Since, the terms of the agreement are not recorded with Moore anymore; the onus is on Otto to prove that the designs provided by Otto have been misused. Moore has already made an agreed amount of payment for the work and is certain that no design has been misused by Gogol or Moore.
Joinder of causes of action and parties
The test to be followed while claiming a “joinder of parties” is that,
- There should be common question of fact or law in the proceedings
- Same transaction or events of series of transaction
- Leave of court
In this case, there are 3 a series of events that fall under the same transaction and are related by facts, hence the principle of joinder of parties will apply. Bendir v Anson laid down that whenever same question of fact or law arises in the same transaction, the facts can be joined in the same proceedings.
Jurisdiction Of Court
In this case, the parties are related by the same chain of events and transaction and are governed by “joinder of parties”. A joinder of parties is triable by the Supreme Court. In this case, the Supreme Court of Australia has jurisdiction to try the case. This is a civil dispute by nature and since there has been a breach of contract, there will be fixation of damages by the Court. In cases of civil dispute, the aggrieved party is compensated by paying damages.
Part 10.3 deals with service of originating process in Australia. This applies to all the proceedings taking place in Australia. Service is the formal process of notifying the other party about sending the documents. All documents related to the document need to be sent to the defendant as per the rules of the UPCR. The service of documents is done to ensure that the legal documents that are necessary for the proceedings are sent to the other party as per the rules. Originating Process is the initial service before the commencement of the proceedings. The original application needs to be served to the other party who are parties to the proceedings. Originating Process can be served personally by handing over the documents to the other party. Part 10.14 states that a document shall be served on a party by the court when the service cannot be served in the normal course.
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CGU Insurance v Bazem Pty Ltd  NSWCA 81.
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Uniform Civil Procedure Rules, 2005
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