Steve, Senior Lawyer, SMB Legal, Essay Example

Introduction

This is merely your name, student number and some form of identifier.

Executive Summary

In looking at the following case between the clients William Birken and Bethia Brown of Whichity Grub, which specializes in preparing native Australian food, were charged with misleading and deceptive conduct under the Fair Trading Act (WA). Based on the evidence that is compiled against our clients, it does not look like the joint defendants are going to be able to win this case. The following memorandum is prepared to provide an overall explanation of the discovery to the joint defendants, the interest of Angela Italiano that works at the RQB Laboratories, the members of the witness list, and the comparison or equalization of wallaby meat for kangaroo meat. There are some ethical dilemmas that arise from examining the clients’ case in which points to the evidence of hearsay from some of the witness accounts, as well as ethical issues of the jury believing the testimonies of former employees, or that of a shifty owner, and an absentee owner that chooses to be negligent of the company’s operations. The company itself has participated in ethical problems that arise from the potentiality of serving customers meat that has been passed off as other types of meat. This falls under false advertisement, as well as claims under the Fair Trading Act 1986, that prohibits the misleading and deception of conduct in trade, generally and in relation to employment, services, and goods. In addition, the misleading representations of particular business activities. (The Fair Trading Act 1986)

Explanation of Discovery

For the clients, William Birken and Bethia Brown, they were sent a summons for each over two months prior. In providing a clear understanding to the clients on things that relate to their case, this section will be constructed to provide an explanation on discovery, and what it means for handling their case. According to National Archives of Australia, sponsored by the Australian Government, a discovery is, “the process where parties to a legal proceeding identify and disclose to each other documents that are relevant to the issues in the proceeding” (NAA)  Discovery is often abused, and considered the most costly, in which places greater need for court supervision and control.

According to the ALRC, there are also concerns that discovery could be used use tactical tool for exhausting the research from other parties, which would encourage settlement of affairs.

The process in which to discover documents in court proceedings would be used in the Federal Court Rules 1979 (Ctn). The Rules state that parties must have the leave of the court to file and supply a notice for discovery. “The Court must interpret and apply civil practice and procedure provisions, such as the requirement for leave of the Court for discovery, in the way that best promotes the overarching purpose of civil practice and procedure—the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible” (Federal Court of Australia Act 1976 (Cth) s 37M).

For civil law jurisdictions, there is no obligation to disclose all relevant documentation that they might possessed. For discovery, the process is different in common law versus civil law jurisdictions. For Common law, they rely on extensively on the settlement of disputes in order to mitigate case volume. While in comparison, in civil law cases, they courts focus on cheaper and expeditious court resolution to control case volumes. For the process of discovery, the Federal Court Ruled do not provide prohibition on giving discovery notice, and unless the party seeking discovery can prove that it is important to plead without a discovery notice, than it will not be enforced prior to the closing of case proceedings. It is important to acknowledge that the Court will not order general discovery as a matter, even when both parties have consented to the want for Discovery. It is up to the Court that will fashion the order to suit the needs of the particular case. (Practice Note CM 5) The Court will also make orders of discovery in regards to facilitating the just resolution of disputes in regards to the law, as efficiently, inexpensively, and as quickly as possible.

Discussion

Admissible Evidence of Expert

The concern for Angela Italiano is serious for the case,  in which is called upon as a witness, as well as has the skills of being recalled as an expert that possesses a hyper sensitive palate, as a top chef. Angela is able to tell the variety of any meat or vegetable just by tasting it, in which they will rely on her testimony as evidence to the real content of meat portions that William services in the restaurant. In determining if Angela will be, a viable threat is to ascertain her level of “expertise” to the case. Will her supplying her type of “evidence” be able to be presented to the court. The plaintiff RQB Laboratories bares the Onus of Proof in order to present sufficient evidence by establishing a prima facie case to the courts. However, according to the Australian Communist Party v Commonwealth (1950) 83 CLR 1 that centered on the dissolution of the Australian Communist Party and the Commonwealth Act, which shows how the courts will accept well-known information or accepted wisdom.

The courts will accept the knowledge of educated people upon many matters and for verification, are based on three tenets in courts. For Angela’s evidence to be admissible in court she must established, the field of expertise; the witness is a qualified expert; and “the matter to which the material relates is not within ordinary human experience- “common knowledge”” (Australian Law Reform Commission Report 26, para 156). This was evident in Clark v Ryan (1960) 130 CLR 486, a decision made by the High Court that has set a principle in the area of law, for applying the Common Knowledge Rule. These rules includes the traditional approach and the functional approach in which applies to the clients’ current case. For that matter, it is believed that she would prove difficult to take down and if it is proven for meat to be not as it is purported then we will lose the case.

Waitress Testimony as Evidence

Emma Fountain-Penn is a former waitress at Whichity Grub, who claims that she had often heard William speaking to Herc, and telling him that the public was aware that crocodile tastes like turkey, so no one would ever know. While Fountain-Peen used to work at the restaurant, which can be proven, her conversations that she said she overhead, can be considered hearsay by the plaintiff. However, it also is relevant to the case, and based on the Definition of Relevance under the Commonwealth Evidence Act (1995). “The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a face in issue in the proceeding” (55 Relevant Evidence). Emma’s testimony would be accepted in court because it relates to the credibility of the witness, as well as the credibility of Herc and William.

Herc’s Credibility

For Herc Genovese, the previous employee, and sub chef of Whichity Grub, his complaint is what sparked the current case against the restaurant. He is a highly trained chef that was fired for conflicting reasons. According to Herc he was fired because he complained about the quality, and the validity of the food they were serving. For William, he was fired because he was loud and cursing enough for the patrons to overhear. This could be asserted as a level of bias, in which he could be painted as a disgruntled employee that is out to seek revenge for being fired. Since Herc did file an unfair dismissal claim against William, this can also be claimed during cross-examination. However, you must also consider that under The WA Act, if a witness is competent then they are compellable. According to the Act, the courts cannot exclude given testimony on the grounds that they might have interest in the matter, such as previously working for the defendants.  You must strike a balance in cross-examination as demonstrated in Hally v Starkey (1962) Qd R 474-Gibbs CJ at 478.  However, if the cross-examination pinpoints to the biasness of the witness, then evidence can be introduced against the witness. (See R v Umanski (1961) VR 242) (Evidence Act 1995 Cth S106 (a)).

William comes off as a shifty character. This is evident in William explanation of the invoices discovered by the plaintiff, in addition to how he uses the meat that is bought from these companies, and attesting that kangaroo and wallaby meat are interchangeable terms of the same product. If forced to place the two in front of a jury, the jury would think that William is lying about the meat that he uses, so we would potentially lose the case. What William purports to be the truth comes off as a lie, while when listening to Herc Genovese, the former employee, his testimony to his claims against the defendants comes off as sincere and earnest.

Judicial Notice of Wallaby and Kangaroo Meat

No, we cannot get the courts to take judicial notice of wallaby being the same as kangaroo. It will be common knowledge that can be refuted by any expert that while both kangaroo and wallaby belong to the same family of marsupials and macropods, they are not identical. They each have different characteristics in which differentiate each other from the other. Judicial notice is only recognized when recognized as a common fact.

Recommendation/Further Inquires

The recommendation for you to take is to ask the defendants to see the meat that they serve, as well as the advertisements that they deliver to the public in which states that the meat they serve is what is advertised. In addition, more information should be taken about Herc and Emma to provide evidence for biasness that can be entered into evidence. More information needs to be collected on Angela the expert, in order to try to discredit her level of knowledge that can be entered into the courts. You can also find prior instances in which Wallaby meat was accepted as Kangaroo meat, or in some instances mistaken, to prove that the defendant might have mistakenly served Wallaby meat instead of Kangaroo meat to patrons.  While this may be hard, it is not unfounded in Australia for Wallaby meat to pass on for Kangaroo meat, since the two animals are similar in in nature.

More importantly, you must introduced evidence of invoices from the companies that the defendants lists as where he receives his meat from, in order to prove that the meat he serves is what it is advertised as to be. This will help provide support to William’s case in which he alleges that he purchases food from other sources. This would likely move the case to be grounds for dismissal, or give the defendants a chance in court to prove their innocence. You can also bring in eyewitnesses to discount Herc’s credibility, by offering up customers that have overhead many of Herc’s loudness in the kitchen. This can further insert Herc’s biasness in his claims against the restaurant. Other recommendations are to search for cases in which restaurants have used advertisements to draw customers in, but made no guarantee about what was being advertised, but was not charged with misleading the public.  These cases can set a precedence for the case at hand.