Ann and Ben Prive live with their 8 year old daughter Calista in Melbourne. They are vegetarians who insist on eating organically produced food. They shop at an organic market held on Saturday's at the local primary school. The market trades as a business called 'Organic Saturdays' and is owned by James Sutton. He rents out stall space to producers who sell their good directly to the public. He runs similar markets all across the country. He is often in the media promoting his organic markets and advertises them stating'We only sell the finest, healthiest, freshest organic products'.

In January 2020 the family went for their weekly shop to 'Organic Saturday's'.They bought unpasteurised milk from the stall called 'Pure Milk' owned and run by a local dairy farmer called Bill Smith and a cantaloupe from the stall called 'Oliver's Organic Farm Pty Ltd' which was owned a company. That evening they drank milk with their dinner and ate cantaloupe for desert.Within an hour, all of the members of family became violently ill.They suffered symptoms offever, muscle aches, nausea and diarrhoea.Over the next few hoursBen and Calista suffered headaches, stiff neck and confusion and Calista started to suffer convulsions. Ann became alarmed and called an ambulance. Ben and Calista were admitted to the Freeland hospital, which is private hospital owned by Freedland Pty Ltd, a company based in Sydney. They were diagnosed withfood poisoning. As Ann was also feeling unwell she was also admitted to hospital.

The doctors subsequentlydiagnosed listeriawhich is abacterial infection that can cause serious illness.When Ann told the doctors what they had consumed immediately before falling ill,they advised her that this infection was most likely caused by the unpasteurised milk but may have also been caused by the cantaloupe.

Ann and Ben remained in hospital for one week and spent another three weeks at home recovering.Over this time Ann and Ben were unable to work in their family consultancy business and lost many lucrative contracts valued at $200,000.

More significantly, Calista suffered serious complications from the food poisoning.The doctors initially diagnosed her with a simple listeria infection. However after 3 days she was diagnosed with bacterial meningitis which is an inflammation of the membrane surrounding the brain and spinal cord. She remained in hospital for 4 weeks.She suffered severe long term damage as a result including the amputation of her right arm below the elbow, hearing loss and brain damage resulting in serious learning difficulties.

One day while Calista was still in hospital Ben ran into one of the junior doctors at the hospital that was treating her.The doctor said 'I am so sorry about Calista, we should have diagnosed her with meningitis almost immediately. It should not have taken 3 days to diagnose. The treating senior doctor had not paid careful enough attention to her brain scans and high temperature.Anyway, we treated her with antibiotics and an earlier diagnosis would probably not have made any difference.'

In the meantime food authorities issued a warning to consumers that they should not eat cantaloupes branded 'Oliver's Organic Farm Pty Ltd' because there had been a listeria outbreak at that farm. Ann saw this report and remembered that she bought the cantaloupe from that stall at the market.She read in subsequent newspaper reports that at least 15 people from Victoria had suffered to varying degrees from listeria caused by those cantaloupes and that 2 of those consumers died.

In February 2020 the family visited their local solicitor Dennis Sanuto.He heard the story and told the family that they had a good case for breach of contract and negligence against 'Oliver's Organic Farm Pty Ltd' and 'Pure Milk' for selling infected products.He advised that they could both be sued as companies, however they seemed to be small farm businesses and would probably not be able to pay the large amount of damages that would be sought.

Ann asked him whether it was possible for all of the consumers of the cantaloupe in Victoria who had suffered listeria to sue 'Oliver's Organic Farm Pty Ltd' together in one case. Dennis said that this was not possible and that in any case the 2 dead people could not sue.

Sanuto said that the family's best course of action was for all three of them to sue the hospital for negligently diagnosing Calista's meningitis 3 days late, even though the hospital didn't cause the infection and may not have exacerbated its effects. He nonetheless told them to sue the hospital 'because it has deep pockets and would want to avoid the negative publicity'.

Further Sanuto, advised them to sue the business called 'Organic Saturdays' for negligence because they had a duty to make sure that their stall holders didn't sell infected produce to consumers. He also advised them that they should commence proceedings byoriginating motion. He told them that there was no need to name each of the family members as plaintiffs, but that they could sue as a family unit.

The family accepted this advice. Dennis issued proceedings by originating motion against the hospital and the market in the Supreme Court of Victoria. Dennis did not send any letters of demand to the hospital or the market prior to doing so. He advised his clients that it was a good idea to 'take them by surprise'.

Dennis attached the following statement of claim to the originating motion:

IN THE SUPREME COURT OF VICTORIA AT Melbourne

No 203 of 2020

BETWEEN: Prive Family

and

Freedland Pty Ltd 'Organic Sundays'

Plaintiffs

First named defendant Second named defendant

STATEMENT OF CLAIM

Date of Document: Filed on behalf of: Prepared by:

Mr. D. Sanuto Solicitors

4 Main Street, Melbourne

26 February 2020 The Plaintiffs Solicitor's Code: 007 DX: 007

Tel No: 1800 666 Ref: DS

1.At all material times the First named defendant was a hospital.

2. At all material times the Plaintiffs were patients of the First named defendant. 3. At all material times the Second named defendant was an organic food market.

4. At all material times the Plaintiffs were customers of the Second named defendant.

5. On or about January 2020 the Plaintiffs were treated by doctors employed by the First named defendant.

6. The First named defendant's employees negligently failed to give the plaintiff Calista Prive proper care and treatment.

6. The First named defendant caused the Plaintiff Calista Prive to suffer damages resulting from meningitis which are detailed in the attached medical reports and photos and detailed in the attached affidavits.

7. On or about January 2020 the Plaintiffs bought and consumed unpasteurised milk and cantaloupe infected with the listeria bacteria from the stalls at the Second named defendant's organic food market.

8. The Second named defendant was negligent in permitting unpasteurised milk and cantaloupe infected with the listeria bacteria to be sold to the Plaintiffs.

9. The Second named defendant caused the Plaintiffs to suffer damages caused by food poisoning with the listeria bacteria.

10. Further and in the alternative, the Second named defendant has breached the Australian Consumer Law by misleadingly advertising that 'We sell only the finest, healthiest, freshest organic products'.

AND THE PLAINTIFFS CLAIM: Damages.

Dennis Sanuto posted the documents to the registered company address of the hospital. He also emailed the documents to the advertised email address of 'Organic Sundays'. The hospital filed an appearance in the matter in the Supreme Court of Victoria. No appearance was filed by 'Organic Sundays'. Then in April 2021, Dennis received a telephone call from man called James Sutton who abused him on the telephone for suing him for food poisoning because 'I only sell stall space at the market- not cantaloupes and milk'. Sutton told Sanuto that his solicitor had told him to ignore the papers because 'Organic Sunday's' was not a company name and in any case the papers had not been delivered properly.

QUESTIONS

1. In what respects is Dennis Sanuto's advice incorrect or in breach of the Civil Procedure Act or Supreme Court Rules (Vic)? Explain your answer and provide the correct advice.
2. Identify and explain the errors in the statement of claim.
3. The hospital wants the proceedings moved to NSW. What application could it make and is it likely to be successful?

(Hint) in answering this question consider the test below and apply the cross vesting legislation

TEST 1

(a) whether, apart from the cross-vesting scheme, the proceeding or a substantial part of it would have been:

- incapable of institution in sending court; and

- capable of institution in receiving court

AND

(b) the extent to which matters for determination require application of laws of the jurisdiction of the receiving court which are not within the jurisdiction of sending court except for cross-vesting scheme.

AND

(c) theinterests of justice

it ismore appropriatethat the proceeding be determined in the receiving court. s 5(2)(b)(ii)

OR

TEST 2

it is otherwise in theinterests of justicethat the proceedings be determined in the receiving court. s5(2)(b)(iii)

things to consider: (the place where the wrong occurred, residence of the parties, The convenience of the parties and witnesses, The law governing the proceeding, experience of a particular court, The condition of a party)