Client Interview and Advice Tort Law Assignment

Preliminary Information

You are a junior solicitor in the employ of Moody & Sons, Solicitors. A paralegal in the firm has recently taken the below statement from a new client, Mr Jay Rowland. A partner of the firm, Mr Sullivan Moody, has asked you to review the statement and prepare a written advice for the client’s file to assist him with the next appointment scheduled with Mr Rowland.

 

STATEMENT OF JAY ROWLAND

Since January 2014, I have run my own bar in Fortitude Valley, Brisbane. The bar is located in an old converted Queenslander. I hate ‘chuggers’ – that is charity muggers, or people who enter my bar and ask my customers for donations to charity. Therefore, I have a big sign on the door of my bar which prohibits the entry of persons raising money for charity. Poppy Clarke owns and lives in the house next door to my bar. Poppy spends her free time raising money for the Ronald McDonald House charity.

Two months ago, Poppy entered my bar. I saw her wandering about talking to various customers before she sat down at one of the tables – refusing to order anything. Two hours later, Poppy had still not ordered anything, so I asked her to leave immediately. Poppy remained seated, so I told her what would happen if she did not leave. Poppy then began to scream and run towards the bar exit. In her haste to leave, Poppy was not looking where she was running. I thought that she was going to knock over one of my regular customers, Bob, so I pushed Poppy out of the way. Poppy stumbled, but continued running out of my bar.

During the time that Poppy had occupied one of my tables, I had to turn away a number of customers who wanted to eat and drink at my bar. Bob was not threatened, touched or harmed at all.

Poppy is complaining about her treatment at my bar and about my rubbish bins. Although the bins are not on her land at all, Poppy claims that every Thursday her driveway is blocked, when I leave my wheelie bins out for collection, and she can’t get her car in or out. She has complained to me about this before and I don’t intend for that to happen, but I have a lot of bins as those wheelie bins don’t take much rubbish. I think Poppy just doesn’t realise that times have changed. She bought her house in 1980 when there were no businesses, bars or restaurants in the area. There is no actual damage to Poppy, her land or any of her property.

Jay Rowland

February 2018

 

Your written advice will contain two parts:

 

PART A

You must address the following:

1. Demonstrated Problem Solving and Understanding

• Identify what possible trespass to person and/or trespass to land and/or private nuisance action(s) (successful or unsuccessful) relevantly arise on the facts of the statement (those action(s) that Jay may bring and those which may be brought against him); and
• For each action identified above, identify what missing or further relevant legal facts are necessary to be obtained or confirmed from any relevant source; and why they are needed (in terms of torts law and primary authorities (cases and/or legislation – not a textbook)), so that legal advice may be given to Jay on the situation disclosed in his statement.
• In determining what further relevant legal facts are necessary, you will need to consider what trespass to person, trespass to land and/or private nuisance actions, defences and remedies (if any) are relevantly raised by the facts of the statement and use your problem solving skills and ISAAC ISAACs methodology to fully work through, in your answer, all the elements of any action, defence or remedy relevantly raised. Your answer will need to apply those elements to the law and the facts of the problem (citing a relevant authority for each legal principle) to either come to a conclusion or, more importantly for this item of assessment, to identify what further relevant legal facts are needed (and why with respect to the law) in order for a definite conclusion on the elements and issues, and a proper advice as to remedy, to be possible.

Therefore, as you work through ISAACs, you will need to: identify the elements and what issues might relevantly be raised on the facts of the client’s statement in relation to each element of an action, defence or remedy; state the law relevant to each element / issue; and apply it to the information provided to either: (a) reach a conclusion on each element / issue; or

• identify (where a definite conclusion is not possible) what further legally relevant facts are required, and why, to enable a conclusion to be made and to provide Jay with a full advice.

Unlike exam or most tutorial questions, for the purpose of this assessment you should not “assume” that an element is satisfied, or does not require further clarification unless all the facts are clearly provided in the above statement. However, this does not mean that you can ‘make actions up’ or go off on wild tangents – the only actions and defences to consider are those that relevantly arise from the facts given.

 

• Do not advise on:
• Time periods relevant to limitation of actions;
• Onus of proof;
• Any action(s) available to Bob; or
• Any trespass to land action(s) available to Poppy and/or in relation to the rubbish bins.
• Authorities or references must appear, as relevant, in footnotes (see below). While you should try to reference prescribed cases and prescribed legislation where relevant, if there is not a prescribed case that relevantly applies to a statement of law or issue (applying the ISAACs problem solving method), you should not provide a textbook or your study guide as the authority. Rather, you should reference one of the cases identified for that principle in your lectures or textbook.

 

Things to Note:

You may assume that:

• The factual matters actually disclosed in the statement can be proven – so the facts you require should not go to matters of evidence (eg. ‘Did anyone see you?’; ‘What were your customers’ names?’). Instead, you should take the facts provided as given and focus on that additional information needed to confirm or establish: remedies; and/or whether the elements of the action(s) and/or defence(s) can be satisfied.
• You may also assume that your secretary has already dealt with all administrative matters such as ascertaining your client’s address and details, opening a new file and explaining to the client your fees requirements and procedures. Therefore, these matters should not be addressed anywhere in your answer (ie. they are not relevant to either Part A or Part B below). (14 marks)

 

PART B

2. Legal Interviewing and Questioning

• On the basis of your analysis in Part A above, draft six (6) questions that your partner, Mr Moody, would need to ask your client Jay in order to obtain the additional information identified as needed in relation to an element / issue of an action, defence or remedy relevantly raised. For each question, you must indicate what type of question it is (eg. open, closed etc).

 

Things to Note:

• Each of your questions must relate directly to an element of an action, defence or remedy, identified in Part A. Therefore, your six questions:
• Cannot include general questions such as ‘why have you come to see me today?’;
• Cannot raise a
  ny issues / additional information in Part B that you have not included in your answer in Part A; and
• Do not have to relate to all items of additional information identified as needed in Part A.
• You should have already: explained each question’s legal relevance (ie. why you would need that information with reference to an element of an action, defence or remedy etc.); and cited a relevant authority for each legal principle, as part of your ISAACs analysis in Part A. Therefore, you do not need to do this, or cite authorities, in Part B. (3 marks)

 

ADDITIONAL CRITERIA

 

Your answer to Part A must also demonstrate:

 

3. Legal Citation and Referencing
   • An understanding of providing a relevant authority for statements, or principles, of law.

• An understanding of legal citation by complying with the Australian Guide to Legal Citation (3^rd ed), and providing authorities and references (as needed) in footnotes.

 

Full primary authorities for all points of law must be provided in footnotes. (1 mark)

 

4. Written Communication
   • Effective written communication. In particular, you must:

• Write clearly, in connected prose, with correct and appropriate sentences and paragraphs;
• Have an appropriate structure, with a ‘brief’ introduction (providing a short summary of the objective of the exercise) and a conclusion which are not a summary of the facts;
• Use correct spelling and grammar, including the correct use of the apostrophe ‘s’ (eg. John Smith’s house) and proper nouns (eg. capital letters are not used for plaintiff, defendant, or common law);
• Make sure that you use appropriate language, including the use of gender inclusive language and plain English;
• Proofread to ensure there are no grammatical or typographical errors – this involves more than using spell check; and
• Comply with writing formalities (ie. font size, line spacing and margin requirements). (2 marks)

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