Reference no: EM133211665

1. Estella is an opinionated blogger, occasional free-lance journalist and self-proclaimed crusader against corruption. Estella's slogan on her blog states that she goes 'where angels fear to tread', abbreviated from the proverb 'fools rush in where angels fear to tread'.

2. Jarndyce is a principal solicitor of Esther Jarndyce Lawyers, a general law practice comprising 3 legal practitioners. Jarndyce and Estella are in an on-again, off-again relationship. The relationship is currently in 'off' mode.

3. Clare is the Minister for Immigration, Multiculturalism and Indigenous Concerns (MIMIC). In a recent post on her blog, Estella alleges that Clare is abusing her position as the MIMIC by pursuing a covert White Australia policy. Estella alleges that Clare is putting pressure on a charity, the Support for Asylum-seekers and Refugees Association (SARA) through a government agency within her portfolio, the Charitable Organisations Watchdog (COW), to divert its SARA's resources away from assisting 'blacks' or 'browns' from African and Asian nations, and to channel those resources towards helping 'whites' from Europe instead. Estella suggests that Clare is beholden to a white nationalist group, the Australia for Whites Only Lobby (AWOL) because of the group's substantial donations to Clare's political campaign. In her post, Estella asserts that Clare's alleged conduct '... is clearly discriminatory ... and ... plainly corrupt'.

4. Copperfield and Havisham, solicitors for Clare, have just served on Estella a 'concerns notice' under the Defamation Act 2005 (Vic). Clare's solicitors are demanding that Estella publish a retraction and an unqualified apology on her blog and in a national newspaper, as well as pay Clare's legal costs; otherwise they will commence defamation proceedings on behalf of Clare against Estella.

5. On a Tuesday afternoon, Estella flounces into Jarndyce's office and tosses the 'concerns notice' from Copperfield & Havisham to him, demanding that he respond to it on her behalf. Jarndyce quickly scans through the 'concerns notice' and tells Estella that he is hesitant to take it on as defamation law is a specialist area, but can recommend an expert to her.

6. Estella leans suggestively towards Jarndyce to whisper in his ear and his eyes widen.

Deftly positioning a chair behind Estella, he ingratiatingly invites her to be seated. Estella accepts with graceful poise, crossing her legs and smiling at Jarndyce demurely. Jarndyce slips back into his own chair and prepares to take notes.

7. Apparently, Estella's claims are based on a highly-placed inside source in COW and Jarndyce spends the afternoon getting information from Estella. However, Jarndyce finds it difficult to focus because she keeps blowing kisses to him, which proves to be very distracting.

Finally he tells Estella that he will research the law and asks her to drop by his office on Friday morning for an update. Pashing him on the spur of the moment, Estella invites Jarndyce to drop by her place that weekend instead to discuss the matter in 'more conducive surroundings'. Jarndyce knows what the invitation implies and instantly agrees. Estella sashays her way out of his office.

8. Jarndyce spends the next few days reading up on the law of defamation and honestly forms the view that Estella has a defence of justification and/or in the alternative, a defence of honest opinion. However, he fails to discern that Estella may have asserted statements of fact and that while one defence relates to facts that are substantially true, the other relates to comments or expressions of opinion on matters of public interest that must be demonstrably founded on a proper basis.

9. Tingling with anticipation, Jarndyce goes to Estella's house on the weekend. Genuinely believing that Estella has a good defence if Clare sues her for defamation, he is also excited to discuss his views with Estella. On arrival, he asks Estella once again whether she is sure that she wants him to handle the matter. Jarndyce reminds Estella that defamation law is a niche area and that he is more than happy to recommend a specialist to her. Estella whispers to Jarndyce she wants him to be her 'brave knight in shining armour', puts a finger to his lips and leads him to her bedroom.

10. In the afterglow of their passion, discussing the merits or otherwise of defending potential defamation proceedings is the furthest thing from Jarndyce's mind. Significantly, it completely slips his mind to bring to Estella's attention, the merits or otherwise, of making an 'offer of amends' to Clare.

11. The following Monday, after confirming with Estella, Jarndyce replies to Copperfield and Havisham refuting the allegations of defamation in the 'concerns notice' and affirming that Estella stands by her blog post about Clare. He sends a copy of his reply to Estella by email.
Copperfield & Havisham commence defamation proceedings on Clare's behalf in the County Court of Victoria against Estella and serve the court papers on Esther Jarndyce Lawyers as solicitors for Estella.

12. Jarndyce files a Notice of Appearance in court on Estella's behalf within 3 days of receiving the court papers from Copperfield & Havisham and serves on them a copy of the Notice of Appearance. He starts working on a draft Defence for Estella. He also drafts the 'overarching obligations' and 'proper basis' certificates pursuant to sections 41 and 42 of the Civil Procedure Act 2010 read with rules 4.09 and 4.10 of the County Court Civil Procedure Rules 2018. 

13. Jarndyce emails Estella the draft Defence and requests her to attend at his office to sign 'court papers'. When Estella arrives, Jarndyce asks her whether the draft Defence is accurate. Estella tells Jarndyce, 'Yes, I read it briefly. It is OK, I guess, and anyway, I trust you. But
I have just discovered that my source did not get along with Clare and she bypassed him a couple of times on certain matters. I hear he is thinking of early retirement. Does that make a difference? I still believe him though.'

14. After a slight hesitation, Jarndyce assures Estella that there is no cause for concern. He tells her that this new information should make little difference as he believes that her defences of justification and/or honest opinion will stand up in court. He asks Estella to sign the 'overarching obligations' certificate, telling her that it is 'just a formality'. Estella signs the certificate and leaves without asking any questions.

15. Jarndyce finalises and signs the Defence and the 'proper basis' certificate. He files these documents in court together with the 'overarching obligations' certificate that Estella has signed and arranges for service of all the papers on Copperfield & Havisham. He also emails copies of the documents to Estella for her reference. Having done all these within 2 weeks of filing and serving the Notice of Appearance, Jarndyce congratulates himself on his quick work. 

Question 1

Evaluate Jarndyce's conduct against the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (SR) and discuss 4 distinct rules that may have been breached, other than rules 3, 4.1.4, 4.1.5, 5 and 12. You are not required to discuss more than 4 rules.

Sub-rules are to be treated as distinct rules by themselves, e.g. rule 4.1.4 is a rule distinct from rule 4.1.5.

You must clearly identify the relevant facts that support your arguments and show how each relevant rule of the SR has been breached.

Question 2

With reference to a relevant case and a corresponding rule (i.e. a rule that corresponds to the principles discussed in the case) of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (SR), other than rules 3, 4.1.5, 5 and 12 or any of the rules that you have identified as having been breached in Question 1, discuss whether Jarndyce should be acting for Estella.

You must analyse the case and apply the principles gleaned from it, as well as show how the principles correspond to the relevant rule of the SR.

For this assignment, an in-depth analysis of a single relevant case is preferable to a superficial discussion of 2 or more cases.