3. Starting Proceedings Flashcards
When does a proceeding start (QLD)?
Proceeding starts when the originating process is issued by the Crt, these can be: r8 UCPR
1. claim;
2. application;
3. notice of appeal; or
4. notice of appeal subject to leave.
Process for dealing with proceedings incorrectly started by claim/application: rr13-14 UCPR
What are the steps for starting a proceeding where issue of fact (QLD)?
- P files claim: r9 UCPR with SOC attached: r22 UCPR
- D files and serves notice of intention to defend (NOD) and defence: rr137 and 139 UCPR
* 28 days after service of claim/SOC - P files reply to defence: r164 UCPR and close of pleadings: r169; joinder of issues: r168 UCPR
* 14 days after service of defence - Disclosure: **r214 **UCPR
* 28 days after close of pleadings - Offer to settle: rr352-354 UCPR
* Any time before final relief granted - Directions: r367 UCPR, or if failure to comply with rules: r371
* As the need arises, no time specified.1q
What are the steps for starting proceedings where issue of law only (QLD)?
- Applicant files originating application and supporting affidavits: r11 UCPR
- Respondent files and serves affidavits: rr 437 and 438 UCPR
- Disclosure of document, BUT only if crt directs under r367 UCPR: r 209
- Directions: r367 UCPR as the need arises, no time specified.
What are the key differences between starting by claim or application (QLD)?
- Summary judgment not available for applications;
- Evidence in proceedings to be given orally if commenced by claim, and by affidavit if commenced by application: r390 UCPR
When must a proceedings be started by claim (QLD)?
- Proceedings must be started by Claim unless UCPR permits otherwise: r9 UCPR
- the effect is that the claim is the fundamental procedure for commencing proceedings and is to be used unless there is a basis for using originating application.]
- Proceedings with factual dispute will be started by claim.
- Crt may order proceeding incorrectly commenced by claim to be continued as if commenced by application: r13 UCPR
- District and Magistrate Courts: Claim must show the crt has jurisdiction to decide the claim: r22(2) UCPR
What rules in UCPR deal with proceedings started by application?
rr 10–12, 14 UCPR.
What UCPR rules deal with proceedings started by claim (QLD)?
- r9 must start by claim
- r13 crt can order continue by claim if incorrectly started by app.
UCPR
when must a proceeding be started by application (QLD)?
- COMPULSORY: where an Act or UCPR requires or permits an order or another kind of relief and does not specify the type of originating process, or specifies type other than Claim or Application: r10.
- PERMITTED: if the only (or main) issue in the proceedings is an issue of law and substanital factual dispute are unlikley; or there is no opposing party/not intended to serve another; or there insufficient time to prepare a Claim because of the urgent nature of relief sought: r11 UCPR.
- ORAL APPLICATION: may be permitted if urgent relief is sought, counsel/solicitor undertakes to file an application within the time directed; and the crt considers it appropriate having regard to the circumstances: r12 UCPR:
- INCORRECTLY COMMENCED: Crt may order proceeding incorrectly commenced by application to be continued as if started by claim, if appropriate can order that affidavit filed in support be treated as pleadings: r14 UCPR
The filing of an amended claim without an appropriate order is an irregularity within r371, and remains valid unless the Crt orders otherwise: New Asian Shipping; Bates v Queensland Newspapers
What UCPR rules apply to a proceeding started by application (QLD)?
r10 - when MUST be started by app
r11 - when MAY be started by app
r12 - when crt may allow start by oral app
r14 - where incorrectly started by application - can order cont by claim
How do you start proceedings in FCT?
By Originating Application: proceedings in crts original jurisdiction MUST be started by Originating Application, complying with the formal requirements in rr8.01(2)-(3) and r 8.03: r8.01 FCR
What should be included in the OA (FCT)?
- MUST be accompanied by a SOC or **some other document **provided by a Federal Court Practice Note (e.g. concise statement): r 8.05 FCR.
- MAY be accompanied by supporting affidavit instead of SOC if not seeking damages: r8.05 FCR.
- MUST: must file a genuine steps statement in accordance with Civil Dispute Resolution Act 2011 (Cth): unless an exclusion applies: r8.02 FCR, must specify:
- steps taken to try to resolve the issues in dispute; or whether/and the extent, the safety/security of any person or property would have been compromised by taking such steps.
- the **relief claimed **but need not include a claim for costs, and if relief is claimed under a provision of an Act, the Act and the provision under which it is claimed must be stated, provision is also made for special kinds of relief in terms of what must be stated: r8.03:
What is a material fact (FCT)?
Generally all facts upon which the cause of action depend are material: Darbyshire v Leigh [1896]
If material facts are omitted from the accompanying affidavit or SOC the respondent will be entitled to apply for a dismissal but usually the applicant will be given the opportunity to rectify before that drastic step is taken. In the case of a SOC, it will be a ground for striking out that pleading: Trade Practices Commission v David Jones
What if there is a constitutional issue (FCT)?
- Party who raises the matter must file a notice to the AG of the Cth and States/Territories, and other parties, stating the nature and facts showing constitutional matter: r8.11FCR.
- Notice must be served 7 days after OA or pleading, or 14 days if not listed for hearing and not OA or pleading, or otherwise as crt directs: 8.12 FCR.
Amending an OA (FCT)?
- Can apply to the crt for leave to amend OA for any reason including: r8.21:
(a) correct defect or error;
(b) avoid multiplicity of proceedings;
(c) correct mistake in name of party;
(d) change capacity in which party suing;
(e) substitute a person for a party;
(f) add or substitute a new claim for relief/foundation in law arises out of same/substantially same facts or out of facts/matters that have occurred since start of proceedings.
BUT discretion to amend OA not at large and must be considered with the objectives of s37M FCA in mind, as per approach noted in Aon.
What are the FCT rules for amending OA?
rr 8.21-8.25 FCR, must be applied with case management principles/s37M FCA in mind: Aon
r8.21: Amendments generally: may apply for leave to amend OA for any reason, including: correct defect/name of party/identity of party; avoid multiplicity of proceedings; substitute person for a party; add/substitue claim (if arise sub same facts).
rr8.22-8.25: date on which amendments take effect and procedure/timing/service for amending.
