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#8509 - Initiating Proceedings - Litigation - Civil Procedure

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7 initiating proceedings [8.10- 8.425] 1

1 Originating Process [8.20] 2

2 reasonable prospects of success certification: LPA s 347 5

3 service – go to notes 5

4 a Appearance [8.60] 6

4b objection/notion of motion setting aside originating process 7

5 GO TO PLEADINGS – CONSIDER IF SOL/DEFENCE HAVE ISSUES 7

Intro:

Overview:

(Pre-commencement – preliminary discovery, interim orders, ?)

  1. Proceedings initiated

  2. Obligation to serve the originating process

    1. Generally required to be served personally though under certain circumstances the UCPR allows other means of service to be considered equivalent to personal service

  3. Rules concerning pleadings

Definitions:

  • ‘Originating process’ is the process by which proceedings are commenced, and includes the process by which a cross-claim is made: CPA s 3

  • ‘Plaintiff’ person by which proceedings are commenced and includes a person by whom a cross-claim is made

  • ‘Defendant’ means person against whom proceedings are commenced and includes a person against whom a cross-claim is made
Exam tips

  1. Has the originating process begun?

    1. Two ways to initiate proceedings:

      1. (a) Summons (taking a step within litigation prior to litigation, see r 6.4 eg preliminary discovery or injunction)
        or

      2. (b) Statement of claim (r 12.40). Used where there are disputes over facts see r 6.3 eg tort fraud debt

    2. Note: date of filing of originating process conclusive for purposes of any limitation defences.

  2. Reasonable prospects of success: (in claim/defences of a claim for damages) Legal practitioners must certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim/defence has reasonable prospects of success: LPA s 347.

  3. Served? SEE NOTES ON SERVICE

  4. After originating process, D can put on an appearance or a defence or both

    1. Appearances?

    2. Defences

  5. Issues with pleadings FOR THE SOC/DEFENCE?

    1. If unclear then can be struck out.
Exam format

How to initiate proceedings:

First choose whether or not you need a Statement of claim of summons

  1. Two ways to initiate proceeding: Proceedings can be initiated by using a statement of claim or summons: UCPR r 6.2

  2. When statements of claim required: Where proceedings involve disputed contentions of fact and will initiate pre-trial and trial processes for that purpose.

  3. When summons required: Where a question of law and not substantial dispute of fact is at issue. This stimulates a summary procedure (eg where evidence in chief usually given by affidavit rather than orally for a speedy resolution). Speedy resolution effected by a date (‘return date’) being entered on summons by Court Registry when filed.

  4. What happens if wrong process used?: See UCPR r 6.5 for proceedings wrongly commenced by statement of claim and r 6.6 for proceedings wrongly commenced by summons.

Then make sure formal requirements are met:

  1. Content and appearances requirements must be met: Consider whether contents and appearance requirements of originating process have been met under r 4.2-4.4

    • Identity of parties: There is limited scope for the identity of litigants to be kept private (in order to ensure that justice is done in public): J v L & A Services

Service:

  1. Service: Originating process must be served on each defendant within time constrains: r 10.20(2)(a) personal service is required for originating proceedings (outside of the local court)

Note:

  1. Date of filing originating process conclusive for purposes of limitation defences.
2. When a Statement of claim must be used: r 6.3 UCPR

Proceedings of the following kinds must be commenced by statement of claim:

(a) proceedings on a claim for relief in relation to a debt or other liquidated claim,

(b) proceedings on a claim for relief in relation to a tort,

(c) proceedings on a claim based on an allegation of fraud,

(d) proceedings on a claim for damages for breach of duty (however arising) and the damages claimed consist of or include:

(i) damages in respect of the death of any person, or

(ii) damages in respect of personal injuries to any person, or

(iii) damages in respect of damage to any property,

(e) proceedings on a claim for relief in relation to a trust, other than an express trust wholly in writing,

(f) proceedings on a claim for possession of land,

(g) proceedings on a claim for relief under the Property (Relationships) Act 1984,

(h) proceedings on a claim for relief in relation to the publication of defamatory matter.
3. When a summons must be used: UCPR r 6.4

(1) Proceedings of the following kinds must be commenced by summons:

(a) proceedings in which there is no defendant,

(b) proceedings on an appeal or application for leave to appeal, other than proceedings assigned to the Court of Appeal,

(b1) proceedings before the Supreme Court in the exercise of its jurisdiction under section 69 of the Supreme Court Act 1970,

(c) proceedings for preliminary discovery or inspection under Part 5,

(d) proceedings on a stated case,

(e) proceedings on an application for approval under section 75 of the Civil Procedure Act 2005 of an agreement for the compromise or settlement of a claim,

(f) proceedings on an application for a transfer order under Part 9 of the Civil Procedure Act 2005,

(g) proceedings on an application for the removal or transfer of proceedings to the court under any Act, other than an application for a transfer order under Part 9 of the Civil Procedure Act 2005,

(h) proceedings (other than proceedings on a claim for damages) on any application made under any Act (other than the Civil Procedure Act 2005),

(i) proceedings on an application to the court under any Act, other than:

(i) proceedings on an application under the Supreme Court Act 1970, the District Court Act 1973 or the Local Court Act 2007, and

(ii) proceedings on an application that may properly be made in existing proceedings,

(j) any other proceedings that, pursuant to these rules or any other rules of court, are required to be commenced by summons.

An application for an injunction and proceedings in the Supreme Court where the P intends to be entered in the Commercial List or the Technology and Construction List: Practice Note SC Eq 3 Supreme Court Equity Division – Commercial List and Technology and Construction List
4 What happens if wrong process used?: See UCPR r 6.5 for proceedings wrongly commenced by statement of claim and r 6.6 for proceedings wrongly commenced by summons
5 Consider whether contents and appearance requirements of originating process have been met:

  • Originating process should specifically state relief claimed and any question to be determined by the court: UCPR r 6.12

  • Originating process is also required to contain a notice to the D indicating the consequences if the D does not file a defence or notice of appearance: (statement of claim, UCPR r 6.13, for summons, UCPR r 6.14).

What it should have in it:

  • Originating process describes the parties (including their address and address for service of documents): See UCPR r 7.1 for who can commence proceedings

    • (eg natural person, company within meaning of Corporations Act 2001 (Cth) may commence and carry on proceedings b a solicitor or by a director of a company (but if in the SC only if the director is also a P in the proceedings) or in a LC (unless the court otherwise orders) a duly authorized officer or employee of the company.

  • Identity of parties: There is limited scope for the identity of litigants to be kept private (in order to ensure that justice is done in public): J v L & A Services

    • In J v L & A Services, P contracted HIV while working as scientists for their employer the D. Court denied anonymity to Ps. Reasons: (1) information is not to be withheld merely to save party/witness from loss of privacy/embarrassment/distress/financial harm/’collateral disadvantage’ (2) When interests of party which is relied on as basis for anonymity, those consideraitons must be balanced against other factors such as the interests of others involved who may be affected. (3) Open justice is non-discriminatory (4) Public scrutiny is a strong discentive to false allegations and powerful incentive to honest evidence, (5) publicity may attract attention of persons with material information who are unaware of proceedings.

Other formalities:

  • Information that must be contained in the originating process is prescribed, as are paper and margin sizes, and parts of doc that have to be in bold print, and requirements for a proper address for service.

7 Originating process must be served on each defendant

within time

Originating process must be served on each defendant: UCPR r 6.2(3) , and must be personal service when proceedings are outside the local court: UCPR r 10.20(2)(a)

Within time:

  • Originating process initiating proceedings in the SC, DDT or LC is valid for service for 6 months

  • Originating process that initiates proceedings in DC is valid for service for one month after date filed unless D is to be served outside NSW in which case valid for 6 months: UCPR r 6.2(4)

  • Failure to serve originating process within prescribed time does not prevent P from commencing fresh proceedings by filing another originating process: UCPR r6.2(5)

  1. Reasonable grounds for success (in claim/defences of a claim for damages) Legal practitioners must certify that there are reasonable grounds for believing on the basis of...
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