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QLD Bar Exam 2024 > Civil Procedure - Commencing/ Pleadings > Flashcards

Civil Procedure - Commencing/ Pleadings Flashcards

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1
Q

What are the four ways to commence proceedings?

A

Rule 8(2)

  1. Claim
  2. Application
  3. Notice of appeal
  4. Notice of appeal subject to leave
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2
Q

If proceedings not urgent, how would you start?

A

Rule 9

Claim compulsory

A proceeding must be started by claim unless the rules permit the proceedings to be started by application.

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3
Q

Is there any circumstance when starting by application is compulsory or allowed?

A

Rule 10

If the Act or these rules require/permit a person to apply to court for an order or another relief and

a. the Act/Rules do not state the originating process to be used; OR

b. A type or originating process (other than claim/application) is required or permitted by law?

Rule 11
Starting by application is allowed if there is insufficient time to prepare a claim because of the urgent nature of relief sought.

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4
Q

How do you start an urgent proceeding?

A

Can start by application if no time to prepare claim. Rule 11.

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5
Q

What is a pleading?

A

Pleadings are formal written statements of the claim and defence.

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6
Q

What is included in pleadings?

A

All material facts the parties intend to allege are defined in the proceedings.

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7
Q

When is a pleading embarrassing?

A

When it is unintelligible, ambiguous, vague, too general, so as to embarrass the opposite party who does not know what is alleged against him (Priest v NSW).

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8
Q

What is the course of pleading?

A
  1. Statement of claim
  2. Defence
  3. Reply
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9
Q

When will a pleading require leave of the court?

A

Any pleading after the reply will require leave of the court.

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10
Q

Are pleadings binding?

A

Yes. Pleadings are binding and any cause of action (COA) or defence can be rejected if raised later in the proceedings (Banque)

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11
Q

Statement of Claim

A

Plaintiff alleges all material facts to COA.

Must include the relief sought.

May formulate any question of law the court will need to determine.

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12
Q

Defence

A

Defendant must answer specifically each allegation in the SOC.

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13
Q

What does defendant include in the defence?

A

Answer to each allegation by either:
-admission
-non-admission
-denial

-Can plead additional facts.
-Can challenge sufficiency of law in claim.
-Can allege additional facts re:defence.
-Can allege a set-off/ counter claim.

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14
Q

What is a plea in confession and avoidance?

A

When a defendant admits allegations but pleads additional facts to avoid effect of admissions.

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15
Q

What must be included in a reply?

A

MUST raise fact and matters in answer to the allegations in the defence. (e.g if intending to raise counter argument of part performance in land contract action, must raise this in reply).

Cannot respond for the sole purpose of denying the allegation in the defence.

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16
Q

How do you plead a counter-claim?

A

A counter claim is pleaded in the same document as the defence.

Counter-claim operates the same was as SOC. Must allege all facts necessary to constitute a COA and justify a claim for relief.

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17
Q

When does a counter-claim proceed?

A

Counter-claims are separate pleas but proceed concurrently.

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18
Q

What matters must be specifically pleaded?

A

Rule 146 (1)

a. state number of the proceedings
b. state description of pleadings
c. be filed and state what date filed
d. be signed by solicitor/party filing
e. numbered on each page
f. paragraphs and sub-paragraphs as required containing each separate allegation
g. Counsels name if settled by counsel.

Rule 146(2) - Pleading (other than reply) must have on it notice to party on whom pleading is served.

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19
Q

Which rules apply to starting proceedings?

A

Rules 8-14

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20
Q

What happens if a proceeding is incorrectly started by a claim?

A

Rule 13

Court can order it continue as if started by application.

Court can give directions appropriate for the conduct of the proceedings (see R367)

Court can make any order it considers appropriate.

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21
Q

Which rule applies when process is incorrectly started by application?

A

Rule 14

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22
Q

What are the rules for pleadings?

A

Rules 149-156

23
Q

Which rule outlines what are the matters which must be specifically pleaded?

A

See Rule 150

24
Q

What is a presumed fact?

Is a party required to plead a presumed fact?

A

Rule 151

Party does not need to plead a fact if:

The law presumes the fact in the party’s favour.

The burden of proving the fact does not lie with the party.

25
Q

What is the monetary jurisdiction of QCAT?

A

Claims up to $25000

26
Q

What is the monetary jurisdiction of the Magistrates Court?

A

Civil actions up to the prescribed limit of $150,000
ss2 and 4 of the Magistrates Court Act

27
Q

What is the monetary jurisdiction of the District Court?

A

Civil actions up to the prescribed limit of $750,000 (s68)

District Court has the same powers to grant relief as the Supreme Court. (s69)

28
Q

What is the monetary jurisdiction of the Supreme Court?

A

Claims over $750,000

29
Q

How do you advise a client on where proceedings should be commenced?

A

Rule 35
In the district where:
1. Respondent lives or carries on a business
2. Where the claim or COA arose
3. If for recovery of land, in the district where the land is located.

30
Q

Can you have inconsistent allegations or claims in proceedings?

A

Yes
Rule 154

Only if they are pleaded as alternatives.

31
Q

Damages

A

Rule 155

If damages are claimed in a proceeding must state the nature and the amount of damages claimed.

32
Q

General Relief

A

Rule 157

Court can grant general relief even when not expressly claimed in the proceedings.

33
Q

Particulars in pleading

A

Rule 157

Pleadings must include particulars necessary to:
a) define the issues for, and prevent surprise at the trial, and
b) enable the other party to plead; and
c) support a matter specifically pleaded under rule 150.

34
Q

What is the purpose of pleadings?

A

To provide each party with adequate notice of the case that will be met at trial

and

the material facts relied upon for the cause of action.

35
Q

Chapter 6 UCPR

Part 2 - Rules of pleadings
Part 3 - Particulars
Part 4 - Progress of pleadings/ striking out

A

Chapter 6 UCPR

Part 2 - Rules of pleadings (149-156)
Part 3 - Particulars (157-163)
Part 4 - Progress of pleadings/ striking out (164-171)

36
Q

What is the function of particulars?

A

Is to inform the other party of the case they are to meed and to avoid surprise at trial.

37
Q

Can a party seek an order of the court for further and better particulars?

A

Rule 161

Yes.

38
Q

Would a court ever strike out particulars? When might this happen?

A

Rule 162.

1) Striking out of particulars. If particular -

a. tends to prejudice or delay fair trial
b. unnecessary or scandalous
c. frivolous or vexatious
d. is otherwise and abuse of process of the court.

39
Q

If particulars are struck out can costs be ordered?

A

Rule 162(2)

Costs can be ordered on an indemnity basis.

40
Q

What will the court do if a party fails to give particulars?

A

Rule 163

If a party does not comply with an order under rule 161 the court can may any order, (including a judgment), it considers appropriate.

41
Q

What is the timeframe for serving an answer to a counterclaim and a reply?

A

See Rule 164

14 days after the counterclaim is served.

If defendant to counterclaim is not party to the original proceedings then 28 days.

42
Q

Can a party who pleads a non-admission, give or call evidence in relation to a fact not admitted?

A

Rule 165.

No, unless the evidence relates to another part of the party’s pleading.

43
Q

How does a party answer pleadings?

A

Rule 165

Denial
Non-admission
Admission

44
Q

Will an allegation of fact be automatically taken to be admitted?

A

Rule 166(1)(a)

Yes, unless specifically denied or stated to be not admitted.

45
Q

When can a party plead a non-admission?

A

Rule 166(3)

a) party made inquiries to find out if allegation true/untrue

b) inquiries are reasonable when considering time frames

c) the party remains uncertain as to truth/ falsity of the allegation

46
Q

Does a party need to explain why an allegation is denied or not admitted?

A

Rule 166(4)

Yes.

47
Q

What happens if the party does not explain why an allegation is denied or not admitted?

A

Rule 166(5)

It is taken to be admitted.

48
Q

What happens if the court deems a an allegation which was denied or not admitted SHOULD have been admitted?

A

Rule 167

The court may order the party who denied, non-admitted to pay additional costs.

49
Q

When do pleadings close?

A

Rule 169: either-

a) when pleading is served after defence or counter-claim

OR

b) 14 days after the service of the defence.

50
Q

Which Rule deals with striking out pleadings?

A

Rule 171

51
Q

When would a court strike out a pleading?

A

Rule 171 (1) - if a pleading -

a) discloses no reasonable COA

b) has tendency to prejudice or delay fair trial of the proceeding

c) is unnecessary or scandalous

d) is frivolous or vexatious

e) is otherwise an abuse of process of the court.

(2) Court can strike out a pleading at ANY TIME and order costs on indemnity basis.

52
Q

What are the basic elements of pleadings?

A
  1. Facts of claim or defence MUST be pleaded.
  2. Facts MUST be material
  3. Evidence to prove facts MUST NOT be pleaded
  4. Conclusions of law MUST NOT be asserted as facts
  5. Pleadings must be in summary form
53
Q
A

QLD Bar Exam 2024 (21 decks)

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