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FACULTY OF LAW AND BUSINESS
Thomas More Law School
LAWS201: CIVIL PROCEDURE & ADR
SEMESTER TWO, 2026
- NATIONAL –
ASSESSMENT NO.2 – COURT APPLICATION FACT PATTERN
(AND THE FACT PATTERN FOR THE PLEADINGS WORKSHOP IN WEEK 5)
Background
Rachel Richardson is a printer by trade although she currently works in art design for a fashion magazine based in Melbourne/Sydney/Brisbane (choose your home state/city). Coincidentally her father was also a printer but has recently retired. She noticed a gap in the marketplace for the printing of boutique wedding and other special occasion invitations. Given her training, she decided to embark on a side business to maintain her skills and make some extra money as she is saving for a deposit to buy a house in the inner city. She asked her dad if he would be interested in being involved in the venture and he enthusiastically agreed and invested some of his retirement savings into the new business which would be run from the double garage at the family home at 423 High St, Fitzroy/Nth Sydney/Blacktown/Brisbane, a suburb of Melbourne/Sydney/Brisbane (choose your home state/city).
On 5 January (this year) Rachel saw advertised online a refurbished 1976 Heidelberg four-colour process letterpress printer being offered for sale by a Larry Smith in Tasmania for the sum of $80,000 including transportation to any mainland Australian city or major country centre. According to his LinkedIn page, “Larry buys, refurbishes, and sells small scale commercial printers”. Rachel contacted him that day and discussed, via email, purchasing the Heidelberg. Larry stated in an email on 7 January (this year) that he should be able to have the Heidelberg delivered about two weeks after completion of the refurbishment and full payment. When Rachel agreed to purchase the Heidelberg on 8 January (this year), Larry sent her a short sales agreement that listed his email address and phone number, and his business address as, 123 Berry Street, Launceston Tas 7250.
The following terms and conditions formed part of the sales agreement including a one-page schedule to the contract:
- Payment
(a) The Purchaser will pay to the Vendor the full price of the Goods before they are delivered or transported for delivery.
(b) All amounts payable by the Purchaser to the Vendor must, unless the vendor otherwise agrees in writing, be paid by transfer of cleared funds into the Vendor’s bank account.
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(a) The Vendor will take reasonable steps to make the Goods available for delivery on or about the Estimated Delivery Date, but the Vendor is not responsible for any delay outside its control.
(b) If the Vendor does not notify the Purchaser that the Goods are available for delivery within a reasonable time after the Estimated Delivery Date, the Purchaser may terminate the Contract. In that circumstance the Vendor will refund the deposit and any other monies paid and the Purchaser will have no further rights in respect of the delay in delivery and termination of the Contract. - The parties agree that the law of Tasmania applies to this agreement.
The Estimated Delivery Date in the schedule to the Contract was left blank. At the bottom of the Sales Agreement in very small type were the words, “This Sales Agreement was drafted by Barns & Co., Barristers & Solicitors and gave their street and email addresses.
Rachel signed the agreement and sent it back to Larry at his email address on 8 January (this year). Rachel electronically transferred full payment to Larry the following day.
Over the ensuing two weeks, she and her dad busily prepared for the arrival of the Heidelberg by purchasing paper and ink ($22,500 from Pro Printer Supplies on this year – receipt No.PP34567) and sample invitation books ($2,500 from Hallway Greeting Cards Pty Ltd on this year – receipt No.HGC9876).
They also purchased social media and direct marketing advertising ($4,000 from Facebook Limited on 25 January this year – receipt No.FB6543; $4,000 from LinkedIn on this year – receipt No.LI2468; and, $2,000 from Direct Marketing Pty Ltd on January this year – receipt No.DM7531).
The advertising seemed to work because a few weeks later they received three orders totalling $7,000. They issued invoices seeking written acceptance from the customers and received a 20% deposit on the work to be completed (acceptances of invoices: No.001 dated 1 February (this year) from Ms B Oban for $2,200; No.002 dated 3 February (this year) from Mr P Macallan for $3,300; No.003 dated 7 February (this year) from Ms C Sullivan for $1,500). Deposits were paid by electronic funds transfer into Rachel’s bank account.
The printer did not arrive on the date Larry said it would arrive and four weeks passed with broken promises from Larry. Further emails from Rachel seeking some assurances from Larry about the delivery of the Heidelberg dated 24, 25 and 27 January and 2, 5 and 11 February (this year) were either ignored or provided no such assurances.
On 16 February (this year) Rachel telephoned Larry and stated, “Larry this is Rachel Richardson regarding the refurbished Heidelberg”. Larry replied, “Oh yes, hi Rachel”. Rachel stated, “Larry what is going on with the printing press?” Larry replied, “Oh, I have had some problems with my usual supplier of parts but don’t worry, I have found a new source of parts and should be able to have the printer to you soon. Rachel responded, “Well how long will that take?” Larry replied, “It shouldn’t be too long. The main delay is getting them to clear Australian customs as I have to source them from
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overseas”. Rachel responded, “You promised that the Heidelberg would be in delivered at the end of January”. Larry stated, “That is the usual delivery time for a completed refurbished printer. There is nothing in the contract that states a delivery date because of course, the delivery is dependent on completing the refurbishment.” Rachel responded, “Larry, we have taken orders for printed products based on your four-week assurance of delivery! We may have to return deposits we have taken for orders if the printer isn’t here soon! This is also damaging the reputation of our new business!” Larry replied, “Oh sorry Rachel, I am trying my best to get the machine to you, and I should have it to you soon. Oh sorry, I have another call coming in, bye”. Larry then hung up the phone.
A further month passed with Larry promising to finish the refurbishment and him refusing to return Rachel’s money. Rachel tried to ring Larry’s phone again, but it had been disconnected. On 16 April (this year) Rachel refunded the deposits taken for the printing orders. The customers were not happy and said they would never trust Rachel again.
Another three weeks passed and on 7 May (this year) Rachel sent the following email to Larry:
“Dear Larry,
It seems clear from our emails and recent telephone conversation that you are unable to deliver the Heidelberg printer to me as we agreed. Could you please return my $80,000 immediately so I can purchase another printer from another source.
Yours sincerely,
Rachel Richardson.”
Rachel waited a week without any response from Larry and then consulted a solicitor who immediately sent a letter of demand to Larry Smith dated 16 May (this year) requesting that the defendant return the $80,000 plus $25,000 for the purchase of ancillary printing goods, $10,000 for advertising, $7,000 for the lost customer orders and interests accruing from 7 May (this year) within 7 days. A total of $122,000 plus interest. Larry did not respond to the letter of demand.
The civil action
After completing the required pre-litigation protocols in fulfilment of the overarching purpose of civil litigation without success, as Larry ignored all contact with Rachel’s lawyers, Rachel instructed her solicitor to commence legal proceedings to recover the money she had paid to Larry for the Heidelberg printing press, damages to cover her other losses such as, the costs of setting up the business and the lost orders; a total of $122,000 plus interest and costs. Rachel’s lawyers file a Writ/Summons endorsed with a Statement of Claim in the Supreme Court of Victoria/NSW/Queensland (choose your home state/city. Please note that for the sake of convenience in relation to our studies, we will assume this matter is commenced in the Supreme Court as opposed to the County/District Court which is where we would normally litigate this matter given the type of matter and the claimed relief).
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The service of process issue
Rachel’s solicitor engaged a process server to serve process at the business address of the defendant as stated in the contract. The process server attended the address and deposed to the fact that the premises looked abandoned and after repeatedly knocking on the door, no one answered.
The following day, the process server deposed to visiting the address again where a man who looked like the defendant, Larry Smith, from his LinkedIn photograph, entered the house and refused to answer the door. Ten minutes later, a female named “Margaret”, who claimed she knew the defendant arrived at the address. Margaret denied that the male person in the house was the defendant and stated to the process server that the defendant had moved out of the house last month but confirmed that he was still the owner of the house and that she pays rent directly to him by electronically depositing the rent into his bank account each month. The process server handed Margaret a sealed copy of the originating process and asked her that if she sees Larry, to pass on the court documents to him, to which she replied “Sure”. The process server left the documents with Margaret at the house.
The process server also attempted to contact the defendant via his email address and sent a series of messages via ‘LinkedIn’ and ‘Messenger’ drawing his attention to the proceedings and a link to download the statement of claim, but all have been ignored without any response from the defendant.
Upon receiving a report and affidavits of service from the process server, unconvinced that personal service had been affected, Rachel’s solicitor applied for and was granted substituted service from the Court. The order was based on the plaintiff’s application that stated that personal service was impracticable and affidavits from the process server and from Rachel’s solicitors recounting their efforts to serve the defendant. The application stated that the following methods of substituted service were appropriate to bring proceedings to the attention of the defendant with the results of those methods of service noted below:
a) Uploaded a notice of the proceedings and where to obtain the originating process and the date by which Larry must respond, to Larry’s Facebook account. The result of this attempt to serve the defendant was:
There are three people named Larry Smith living in Launceston currently listed on Facebook; none of them contain photos or suburbs of residence. Rachel’s solicitors sent the notice to all three similarly named recipients. The solicitors received delivery notifications from all three Larry Smiths but only received two notifications that the message had been read;
b) Uploaded a notice of the proceedings and where to obtain the originating process and the date by which Larry must respond, to Larry’s LinkedIn account. The result of this attempt to serve the defendant was:
Larry is usually very active on LinkedIn and uses it to promote his business although, Rachel did notice that his LinkedIn activity had reduced since her dispute with him commenced. The solicitors did not receive any notification that the defendant had read the message although they are of course unaware whether the defendant has “read receipts” turned on;
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c) Uploaded a notice of the proceedings and where to obtain the originating process and the date by which Larry must respond, to Larry’s email address. The result of this attempt to serve the defendant was:
Rachel’s solicitors have not received a reply to their email; and
d) Sent an email to Barns & Co. Solicitors advising them of the proceedings and attaching the statement of claim and the order for substituted service. The result of this attempt to serve the defendant was:
Jeffrey Barns, the principal of Barns & Co. Solicitors responded to the email from Rachel’s Solicitors stating they have not been instructed to act for Larry Smith on this matter and hold no instructions to accept service.
Larry alleges that he has not been served with the statement of claim but is concerned that Rachel is chasing him for the money she alleges he owes her and may seek redress through the courts.
He instructs a friend of his, Bud Abbott, who is a solicitor in Launceston, to make some discrete enquiries and oppose any attempt to seek redress through the Court. Bud Abbott finds out about Rachel commencing proceedings despite his client not knowing and instructs you, a barrister with chambers in Melbourne/Nth Sydney/Parramatta/ Brisbane (choose your home state/city), to make a conditional appearance and make application that service has not been effected on the defendant in compliance with Order 6 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)/Pt 10 of the Uniform Civil Procedure Rules 2005 (NSW)/Ch 4 of the Uniform Civil Procedure Rules 1999 (Qld).
The transfer of proceedings issue
Larry alleges that he has not been served the statement of claim (see previous section on the ‘service’ issue) but is concerned that Rachel is chasing him for the money she alleges he owes her and may seek redress through the courts.
He instructs a friend of his, Bud Abbott, who is a solicitor in Launceston, to make some discrete enquiries and oppose any attempt to seek redress through the Court. Bud Abbott finds out about Rachel commencing proceedings despite his client not knowing and instructs you, a barrister with chambers in Melbourne/Nth Sydney/Parramatta/ Brisbane (choose your home state/city), to make a conditional appearance and make an application to have the matter transferred from the Supreme Court of Victoria/NSW/Queensland (choose your home state) to the Supreme Court of Tasmania.
Larry has instructed his lawyers that the following evidence may be relevant to an application for a transfer of proceedings, in addition to anything else his lawyers can think of:
1. The contract did not specify an exact delivery date;
2. The defendant resides in Tasmania;
3. The item the subject of the dispute is in the jurisdiction of the Tasmanian Supreme Court. The Heidelberg is in Launceston in Tasmania and only 3 kilometres away from the Supreme Court building should the court desire an inspection of the printing press;
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4. The sales agreement states that the law of Tasmania applies to the agreement;
5. Larry’s lawyers are located in Tasmania;
6. Larry has six-character witnesses and former clients who are all located in Tasmania, that will give evidence that he is an honourable trader of Heidelberg letter press printers;
7. If the trial is moved to Launceston, then the cost of accommodation, transport and food is arguably less expensive than in Melbourne/Sydney/Brisbane; and
8. Larry was diagnosed in June (this year) that he has pancreatic cancer, a serious illness that is generally regarded as being terminal, and he would not like to see his estate burdened with this dispute. He is being treated at Launceston General Hospital and his doctors are not keen for him to go interstate and be under enormous stress during the trial in another state.
9. The Tasmanian government raised the discount rate for calculating present value of future loss from 5% to 10% under s 96 Civil Liability Fairness Act 2001 (Tas) (a fictitious Act).
If the matter proceeds to trial, Rachel has instructed her lawyer that the following evidence may be relevant to resist a transfer of proceedings - argument in addition to anything else her lawyers can think of:
1. Then plaintiff resides in Vic/NSW/Qld (chose your home state);
2. The contract was made (accepted) in Vic/NSW/Qld;
3. Rachel has an expert witness in Melbourne/Sydney/Brisbane (choose your home state/city) who will give evidence about the easy accessibility of parts in Australia for the Heidelberg letter press;
4. Rachel has other witnesses that will give evidence about how she and her father invested their savings to get the business up and running only to be let down by Larry;
5. Rachel’s lawyers are expensive commercial lawyers located in Melbourne/Sydney/Brisbane and moving things to Tasmania would be very expensive for either party depending on the outcome of the trial;
6. Larry led Rachel to believe that the Heidelberg would be delivered by the end of January (this year);
7. Rachel did not have a lawyer look at the sales agreement and did not understand what clause 12 meant;
8. Just prior to the proceedings being commenced, the Tasmanian government raised the discount rate for calculating present value of future loss from 5% to 10% under s 96 Civil Liability Fairness Act 2001 (Tas) (a fictitious Act) while the Victorian/NSW/Queensland (choose your home state) rate is still 5% pursuant to s 103 Civil Fairness Act 1985 (Vic/NSW/Qld) (a fictitious Act). This means if Rachel wins the case, any order for damages will be discounted more if the matter is heard in Tasmania; and
9. Rachel’s mother has early onset dementia and leaving her to travel to Tasmania would be problematic.
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The Application before the Court
Given the amount being claimed, normally this matter would be heard in the County/District Court of Victoria/NSW/Qld. However, because we have been studying civil procedure through the lens of the Supreme Court, please regard the dispute as being litigated in the Supreme Court of your home state. Further, logically, the second application seeking a transfer of proceedings would probably not occur at the same time as the first application however, for the sake of this assessment, we will hear both matters at the same time.
At the hearing, the application in relation to service will be heard first followed by the application for a transfer of proceedings.
The following text boxes set out the specific task for each student advocate. Your role, date and time of appearance is set out in the Court Fixture document available on the Canvas unit web page under the “Modules” and “Weeks 6 and 7” tabs.
Task for Applicant’s (Larry Smith) co-counsel
on the substituted service issue (Issue 1)
Your task is to make an appearance before a single judge of the Supreme Court of your home state and present an application to have the order for substituted service (made by another single judge of the Supreme Court) set aside. You will need to be acquainted with the Rules of Court for your home state and the most relevant case law, so you can present a persuasive argument to the Court.
Task for Applicant’s (Larry Smith) co-counsel
on the transfer of proceedings issue (Issue 2)
Your task is to make an appearance before a single judge of the Supreme Court of your home state and present an application to have the proceedings transferred from the Supreme Court of your home state to the Supreme Court of Tasmania (Launceston), as the more appropriate court to hear the matter. You will need to be acquainted with the Rules of Court for your home state and the most relevant case law, so you can present a persuasive argument to the Court.
Task for Respondent’s (Rachel Richardson) co-counsel
on the substituted service issue (Issue 1)
Your task is to make an appearance before a single judge of the Supreme Court of your home state and resist an application to have the order for substituted service (made by another single judge of the Supreme Court) set aside. You will need to be acquainted with the Rules of Court of your home state and the most relevant case law, so you can present a persuasive argument to the Court.
Task for Respondent’s (Rachel Richardson) co-counsel
on the transfer of proceedings issue (Issue 2)
Your task is to make an appearance before a single judge of the Supreme Court of your home state and resist an application to have the proceedings transferred from the Supreme Court of your home state to the Supreme Court of Tasmania (Launceston), as the more appropriate court to hear the matter. You will need to be acquainted with the Rules of Court of your home state and the most relevant case law, so you can present a persuasive argument to the Court.
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The following Court documents have been filed and served in relation to this application.
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IN THE SUPREME COURT OF VICTORIA/NSW/QLD
AT MELBOURNE/SYDNEY/BRISBANE
COMMERCIAL DIVISION, GENERAL LIST
No: CDG-1247 of (this year)
BETWEEN
RACHEL RICHARDSON
Plaintiff
and
LARRY SMITH
Defendant
NOTICE OF CONDITIONAL APPEARANCE
Date of Document: (4 weeks ago)
Solicitor’s Code: T123456
Filed on behalf of: Defendant
DX No.: BC98765
Prepared by:
Tel No.: +61 3 5555.1357
Abbott & Costello Solicitors
Email: abbott&[email protected]
405 George St, Launceston Tas 7250
Ref: BA/22/32198
FILE a conditional appearance for Larry Smith the abovenamed defendant.
Bud Abbott
The address of the defendant is:
C/- Abbott & Costello Solicitors, 405 George Street, Launceston Tas 7250
The address of the defendant within Victoria/NSW/Qld for service is:
C/- (Student name), Barrister’s Chambers Ltd, 555 King Street, Melbourne/Sydney/Brisbane Vic/NSW/Qld 3000/2000/4000 (choose your home state).
The email address for service of the defendant is: abbott&[email protected]
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IN THE SUPREME COURT OF VICTORIA/NSW/QLD
AT MELBOURNE/SYDNEY/BRISBANE
COMMERCIAL DIVISION, GENERAL LIST No: CDG-1247 of (this year)
BETWEEN
RACHEL RICHARDSON
Plaintiff
and
LARRY SMITH
Defendant
SUMMONS
Date of Document: (4 weeks ago)
Solicitor’s Code: Q123456
Filed on behalf of: Defendant
DX No.: BC98765
Prepared by:
Tel No.: +61 3 5555.1357
Abbott & Costello Solicitors
Email: abbott&[email protected]
405 George St, Launceston Tas 7250
Ref: BA/22/32198
To: Rachel Richardson, 423 High St, Fitzroy/Nth Sydney/Blacktown/Brisbane, a suburb of Melbourne/Sydney/Brisbane (choose your home state/city) and Olive Hardy of Laurel & Hardy Solicitors, 114 King St, Melbourne/Sydney/Brisbane Vic/NSW/Qld 3000/2000/4000 (choose your home state/city).
You are summoned to attend before the Court on the hearing of an application by the defendant for:
1. An order from the Court that the endorsed Writ/Summons/Statement of Claim in these proceedings be set aside pursuant to rule 8.09 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)/rule 12.11 of the Uniform Civil Procedure Rules 2005 (NSW)/regulation 16 of the Uniform Civil Procedure Rules 1999 (Qld) for irregular service; and
2. An order from the Court that the proceedings be transferred from the Supreme Court of Victoria/NSW/Qld pursuant to section 5(2) Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic/NSW/Qld) as a proceeding which is or may be suitable for transfer to the Supreme Court of Tasmania (Launceston).
(Affidavit evidence omitted for our purpose)
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The application will be heard by a Judge in Court No. (your tutorial room), ACU Campus in Fitzroy/Nth Sydney/Blacktown/Banyu on the date and time specified in the Court Fixture (available on the unit web page) or so soon afterwards as the business of the Court allows.
FILED [four weeks ago]
This summons was filed by Bud Abbott of Abbott & Costello Solicitors, solicitors for the defendant.
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