Commencing An Action Notes

V. Commencing Proceedings Pre-commencement * Preliminary discovery * Limitation period * Preservation order * Searching order? * Serving the originating process within 6 month in SC and LC, 1month in DC * Defendant reply within 28 days or 7 days after the application for setting aside is refused. * Freezing order? * Jurisdiction Where do you go to start a civil case? * Nature of the dispute * Amount in dispute * Location of the dispute * Location of the plaintiff * Location of the defendant's assets How do you commence a civil case / claim? * By filing an originating process (Summons or Statement of Claim) - Forms on website - Filing fee is paid to court registry - Stamped with court seal - Original is left with registry Can be extended by order of court * Personal serving completes affidavit of service: r 35.8 What sort of document is required? Any fees payable? Legal practitioner behaviour General Concepts of Originating Process s 3 CPA: Also defines: * Plaintiff: a person by whom proceedings are commenced and includes a person by whom a cross-claim is made. * Defendant: a person against whom proceedings are commenced, and includes a person against whom a cross-claim is made. The Dictionary to the UCPR provides that these words as defined in the CPA have the same meaning in the UCPR. Searching Order UCPR * r 6.5 wrongly commenced by statement of claim * r 6.6 wrongly commenced by summons UCPR r 7.1 Who can commence proceedings. "Originating process" means the process by which proceedings are commenced, and includes the process by which a cross-claim is made: The purpose of the 'original process', or the commencement of proceedings, across the Australian jurisdictions is to inform the parties to the proceedings and the court which will hear the matter of the issues in dispute. Proceedings are commenced by the filing of the required documents in the appropriate court. * Statement of claim (UCPR r 6.3), e.g., for tort, debt, property * This is usually used where the proceedings involve disputed contention of facts and will initiate the pre-trial and trial processes for that purpose. * Summons (UCPR r 6.4), e.g., for preliminary discovery, exparte proceedings such as Anton Piller orders and commercial list, technology and construction list, non monetary relief. * This is used when there is mainly a question of law, and no substantial facts are in dispute. Usually evidence is given by affidavit rather than oral evidence. If the plaintiff incorrectly uses the wrong originating process there are rules that nevertheless take the proceedings to have been duly commenced and provide the court w`ith power to make appropriate orders. As a general rule the originating process describes the parties (including their address and address for service of documents). The fairness of the process is reinforced by the fundamental policy that justice should be done in public so that justice can be seen to be done. 1 V. Commencing Proceedings * Attention should be paid that Court have power to make a suppression order or non-publication order of "information tending to reveal the identity of or otherwise concerning any party to ...proceedings before the court: Court Suppression and Non-publication Orders Act 2010 (NSW) s 7 * The specific ground for making such an order: s 8 Requirements: Serving originating process within the prescribed time: UCPR r 6.2(4) * A failure to serve the originating process within the prescribed time does not prevent the plaintiff from commencing fresh proceedings by filing another originating process: UCPR r 6.2(5) The originating process must be served on each defendant: UCPR r 6.2(3) s 347 of the Legal Professional Act 2004 (NSW) places obligations on legal practitioners in relation to initiating and defending legal proceedings. UNIFORM CIVIL PROCEDURE RULES 2005 Division 2 - Originating process * Valid for service for 6 months after the date on which it is filed in the Supreme Court * 1 month in District Court, Can be extended, for example, defendant outside NSW --> 6 months In general terms statement of claim are usually required where the proceedings involve disputed contentions of fact and will initiate the pre-trial and trial processes for that purpose. Elements of statement of claim: BK 930 * Court * Parties -- names, addresses, contact details * Type of Claim, e.g.,Tort-Negligence * Relief Claimed: Damages, Interest, Costs * Pleadings and Particulars * Signature of Legal Representative * Notice to Defendant * How to Respond * Address of Registry of Court A Summon is usually used where a question of law, and not a substantial dispute of fact, is at issue. * Usually evidence is given by affidavit rather than oral evidence. 6.2 How proceedings commenced (1) Subject to these rules, the practice notes and any other rules of court, a person may commence proceedings in the court by filing a statement of claim or a summons. (2) Subject to these rules, the practice notes and any other Act or law, the plaintiff may choose whether to commence proceedings by statement of claim or by summons. (3) Originating process must be served on each defendant. (3A) An originating process served in accordance with subrule (3) must include the following: (a) the seal of the court on the first page (whether an original sealed copy or a photocopy of a sealed copy), (b) the case number or unique identifier, (c) the listing date (if allocated by the court registry). (4) Subject to subrule (5), originating process is valid for service: (a) in the case of proceedings in the Supreme Court, the Land and Environment Court, the Dust Diseases Tribunal or the Local Court, for 6 months after the date on which it is filed, or (b) in the case of proceedings in the District Court: (i) except as provided by subparagraph (ii), for one month after the date on which it is filed, or (ii) if the defendant (or at least one of the defendants) is to be served outside New South Wales, for 6 months after the date on which it is filed. (5) Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process. 6.3 Where statement of claim required 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. 6.4 Where summons required (1) Proceedings of the following kinds must be commenced by summons: 2 V. Commencing Proceedings Human protection. (violence) Mainly 4 reliefs: * Must specifically state the relief claimed by the plaintiff. * Where determination of question sought must specify the question. * Costs * Interest up to judgement. (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. (2) Proceedings of the following kinds may be commenced by summons, except where the application is made in proceedings that have been commenced in the court: (a) proceedings on an application for a writ of habeas corpus ad subjiciendum, (b) proceedings on an application for an order for the custody of a minor, (c) proceedings on an application for an order for the appointment of a tutor of a person under legal incapacity, (d) proceedings on an application for a declaration of right, (e) proceedings on an application for an injunction, (f) proceedings on an application for the appointment of a receiver, (g) proceedings on an application for an order for the detention, custody or preservation of property, (h) proceedings on a claim for relief for trespass to land. If proceedings have already been commenced, the application should be made by motion: see rule 18.1. (3) Proceedings in the Supreme Court that the plaintiff intends to be entered in the Commercial List or the Technology and Construction List are to be commenced by summons. (4) Proceedings: (a) in which the sole or principal question at issue is, or is likely to be, one of: (i) the construction of an Act or a Commonwealth Act, or (ii) the construction of an instrument made under an Act or a Commonwealth Act, or (iii) the construction of a deed, will, contract or other document, or (iv) some other question of law, or (b) in which there is unlikely to be a substantial dispute of fact, are amongst those which are appropriate to be commenced by summons unless the plaintiff considers the proceedings more appropriate to be commenced by statement of claim. 6.12 Relief claimed (1) A statement of claim or summons must specifically state the relief claimed by the plaintiff. (2) If the relief claimed requires the determination or direction of the court on any question, the statement of claim or summons must state the question. (3) Costs referred to in section 329 (1) (c) of the Legal Profession Act 2004 (costs payable for the enforcement of a lump sum debt or liquidated sum for damages) must be specifically claimed. (4) Costs, other than those referred to in section 329 (1) (c) of the Legal Profession Act 2004 , need not be specifically claimed. (5) Exemplary damages and aggravated compensatory damages must be specifically claimed. (6) An order for interest up to judgment must be specifically claimed. (7) In the case of a liquidated claim, a claim for an order for interest up to judgment: 3 V. Commencing Proceedings (a) must specify the period or periods for which interest is claimed, and (b) may specify the rate or rates at which interest is claimed. (8) If no rate of interest is specified under subrule (7) (b), the rate at which interest is claimed is taken to be: (a) in respect of the period from 1 January to 30 June in any year-the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and (b) in respect of the period from 1 July to 31 December in any year-the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced. 6.13 Notice to defendant in statement of claim A statement of claim: (a) must state that, unless a defence is filed in the registry, the proceedings may result in a judgment or order against the defendant, and (b) must give the address of the registry where the statement of claim is filed (which will consequently be the address where any further pleadings and other documents are to be filed), and (c) must specify the time limited by these rules for filing a defence. Requirement under s 347: * Limited to claim or defence in damages action * Lawyer must certify that there are reasonable grounds for believing, on the basis of provable facts and a reasonably arguable view of the law * That claim or defence has reasonable prospects of success * Decision in Lemoto [2005] NSWCA 153 * 'reasonable minds may differ' McColl JA * Consequences of claim / defence without merit? Definition of UCPR * A summons is an originating process but does not plead the plaintiff 's case. * Most matters are commenced by Statement of Claim which is a pleading and an originating process. * Expedited list (e.g., commercial list SC Eq) may commence by summons but require summons to be accompanied by a pleading document (e.g., commercial list statement). Defence against last pleadings Pursuant to UCPR r 14.2 the court can order that the proceeding may be properly tried without further pleadings and if such an order is made may direct the parties to prepare a statement of the issues in the proceedings or if the parties do not agree may setter a statement itself.This rule allows the court to advance the overriding purpose in s 56 of the CPA. * Not as straightforward as UCPR Part 10 infers. * Judicial discretion involved in what constitutes reasonable attempts to serve. * Courts must consider whether party could possibly be unaware of court process for which service is attempted. * Above difficulties represent only tiny portion of cases. Service is mostly uncontested. Why service is important? 6.14 Notice to defendant in summons A summons filed in proceedings in which there is a defendant: (a) must state that: (i) the proceedings may be heard, and (ii) the defendant is liable to suffer judgment or an order against the defendant, unless there is attendance before the court by the defendant or his or her barrister or solicitor at the time and place stated in the summons, and (b) must further state that, before any such attendance, the defendant must file a notice of appearance in the registry, and (c) must give the address of the registry at the place named as the place for attendance. LEGAL PROFESSION ACT 2004 - SECT 347 (See Page 10 on I.II) Originating Process and Pleadings "Pleading" includes a statement of claim, defence, reply and any subsequent pleading for which leave is given under Part 14, but does not include a summons or notice of motion. Pleading are applicable for proceedings appropriate for a trial rather than matters being dealt with by summary determination. They are formal documents exchanged between the parties indicating the claim(s) and defendant's defence(s). The pleading process has incentive to respond. Once the statement of claim has been filed and served on the defendant(s), if the defendant does not "traverse" by denying or by making a statement of non-admission in regard to each of the factual allegation in the statement of claim those facts not traversed are deemed to be admitted: UCPR r 14.26 After the defence has been delivered the last unanswered pleading is deemed to be denied unless further pleadings are served: UCPR r 14.27 If the defendant does not file a defence within the time prescribed the defendant is in default and the plaintiff can apply to the court for a judgment to be given. Service of Originating Process Service is a procedure where a plaintiff informs a defendant of the claim being made against them. 4

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