First attempt - QLD and CTH- UCPR - Philosophy, Start Proceedings, Rules of pleadings, and striking out

Question 1

What is the purpose of the UCPR? (r 5) (Qld)

Answer 1

The purpose of the rules are to facilitate the just and expeditious resolution of the real issues in civil proceedings at minimum expense

Question 2

What is the implied undertaking in r5(3)? (Qld)

Answer 2

A party impliedly undertakes to the court and other parties to proceed in an expeditious way.

Question 3

What may the court do if there is a failure to comply with rules or order of the court? (r 5(4)) (Qld)

Answer 3

The court may impose sanctions including dismissing a proceeding or sanction as to costs

Question 4

What are the objectives of Case Flow Management? Hint: facilities the…(4)

Answer 4

Facilitates the procedurally fair, efficient, timely, and cost effective resolution of civil proceedings

Question 5

When are proceedings started? (Qld)

Answer 5

r 8 - When a originating process is issued by the court - Type of originating processes (1) claim (2) application (3) notice of appeal (4) notice of appeal subject to leave

Question 6

What rule/s deals with (1) general rule for where proceedings should be commenced (2) objection to venue, and (3) change of venue by court order (what is considered)?

Answer 6

Rule 35 - Respondent lives or carries on business, where the claim or cause of action arose ect
Rule 38 - Objection to venue
Rule 39 - Court must be satisfied a proceeding can be more conveniently and fairly heard at a different venue

Question 7

What are Claims for and what are Applications for? (general statement)

Answer 7

Claims: Substantial factual disputes (personal injuries, contract breaches, recovery of debt, partnership disputes ect)

Applications: Issues of law little dispute of facts (judicial review), and urgent applications (injunctions, search orders),

Question 8

What are some similarities (1) and differences (3) between commencing proceedings in CTH and QLD jurisdictions?

Answer 8

1. In CTH All proceedings are commenced by filing an Application (r 8.01) in whereas in QLD is either Claim (r 9) or Application (r 10).
2. In CTH applicant decides whether to attach SOC or affidavit, however if seeking damages must attach SOC if not damages either SOC or affidavit (r 8.05). Should file affidavit if issue of law similar to UCPR.
3. In CTH an application must be served before the date set for first directions hearing (r 8.06) whereas in QLD claims/apps that do not have a first return date remain in force for 12 months for service (r 24).
4. CTH similar to QLD if proceedings are commenced incorrectly court can rectify (r 5.04).

Question 9

Do you need to commence separate proceedings for separate causes of action? (State rule) (QLD)

Answer 9

R 60 - You can have several causes of action in one proceedings provided they arise out of the same event or series of events.

Question 10

When should a proceeding for a claim be commenced? and explain how are proceedings for claims commenced, and the duration and renewal of claim? (QLD)

Answer 10

When: Claims should be commenced when there are substantial disputes of fact Cf Applications (r 9.)

Steps - Draft claim in accordance with r 22 (2) claim must set out nature of claim/relief sought, attach statement of claim, and state how court has jurisdiction (Mags, District, or Supreme).

File and serve statement of claim on defendant (r 22(3)) with statement of notice of intention to defend (r 23).

Claim remains in force for 1 year from when served (r 24)

Question 11

When should a WRITTEN application be filed and what is required for an application? (Qld)

Answer 11

When: Applications made only issue is that of law little dispute regarding facts or urgent application (r 10) (Judicial review, freezing orders, injunctions, search orders).

How: Draft application to state orders/relief sort, list and draft affidavits to be relied upon, and court has jurisdiction to hear application (r 26). Must also list estimated hearing time (r 463)

File and serve application and affidavits three days before hearing exceptions (r 27(1)-(3)).

Question 12

When should a ORAL application be filed and what is required for an application? (Qld) + case name

Answer 12

r 12 - Oral apps permitted for urgent relief, however applicant must file an application by time directed by court (r 26) , and court must consider appropriate (Interim injunction) - Earth Pro Pty Ltd

Question 13

What is the difference between evidence at trial for a claim and application?

Answer 13

r 390 - Evidence at trial for proceedings started by claim may only be giving orally whereas evidence for application is by affidavit.

Question 14

What are the consequences of filing an application when it should have been a claim and vice versa? (QLD)

Answer 14

When proceedings are started incorrectly, by claim or application, r 13-14 allow the court to treat the matter as it was started by the right way.

Question 15

What chapter sets out the rules for pleadings? (Qld)

Answer 15

Chapter 6
Part 2 - Rules for pleadings (r 149 - 156)
Part 3 - Particulars (r 157 - r 163)
Part 4 - Progress of pleading (r 164 - r 171)

Question 16

What are the types of pleadings?

Answer 16

Statement of Claim
Defence
Reply

Question 17

What is function of pleadings? (2)

Answer 17

(1) to define issues in dispute between the parties (2) and to inform each party of the case they are required to meet at trial

Question 18

What rules state the matters/causes of action to be specifically pleaded? (Qld)

Answer 18

r149-150 (i.e. breach of contract, fraud, duress, negligence).

Question 19

What must a pleading contain? (r 149 Qld) (r 16.02 CTH)

Answer 19

A pleading must contain a statement in summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved.

Question 20

When is a party not required to plead facts? (QLD) r 151

Answer 20

r 151 - Presumed facts - Do not have to plead where law presumes the fact in parties favour or burden of providing fact not on party

Question 21

Finish sentence: A party may plead a conclusion of law or raise a point of law if…(state rule)

Answer 21

R 149(2) - a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.

Question 22

How are facts pleaded?

Answer 22

All material facts should be pleaded and a fact is necessary to disclose a cause of action.

Question 23

What are the applications about pleadings? (4 types)

Answer 23

(1) Further and better particulars - r 161; r443-r444
(2) Strike out particulars r 162
(3) strike out pleadings r 171
(4) default judgment r 281, 283-290

Question 24

When are pleadings due? (QLD) and (CTH)

Answer 24

28 days for defence after service of SOC (r 137)
14 days for reply after service of defence (r 164)

CTH 16.32-16.33

Question 25

What rule empowers party to apply to court for f&b particulars and what rule sets out what needs to occur before that application is made (Qld)

Answer 25

r 161;444-445 - Entitled to send request for further and better particulars of pleadings in circumstances where a party is unable to properly plead their cause or because they may be taken by surprise at trial.

r 444 corrospondence needs to be sent, r 445 reply,

Question 26

How may a party answer pleadings (Qld) (3 ways)

Answer 26

r 165 - Denial, non admission, or admission

Question 27

What happens if you fail to plead to a allegation of fact? (r166(2) Qld) and (16.07 CTH)

Answer 27

Allegations not denied are admitted.

Question 28

How are denials pleaded? (Qld), (Cth), and case

Answer 28

QLD - r 166(4)-(5) - A parties denial must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or can not be admitted. Failure to comply is taken as an admission.

CTH - 16.07

Cape York Airlines - A party can only plead denial if the party believes the allegation to be untrue.

Question 29

1. What rule deals with non admissions (Qld) and CTH?
2. When can a party plead a non admission to an allegation?
3. When a party pleads a non admission to allegation of fact what must it do? what is the consequences of failing to do so?
4. When a party is making a non admission it is obligated to do what? (Qld)

Answer 29

QLD 166 CTH 16.07

QLD - r 166(3)(4),(5),(6) - Can only plead non admission once (a) party must have made enquires about whether allegation is true or false (b) reasonable enquires (c) party still remains uncertain.

Must provide a direct explanation as to the parties belief as to why it can not be admitted. Failure to do so will mean the party is taken to have admitted the allegation.

The party who pleads a non-admission remains under an ongoing obligation to make reasonable inquiries and, if possible, amend the pleading to admit or deny the allegation

CTH rule no on going obligation to make enquries

Question 30

If the court considers an allegation of fact denied or not admitted should have been admitted, Unreasonable denials or non admissions, the court may order what? state rule (Qld)

Answer 30

r 167 - …additioanl costs caused by the denial or non admission

Question 31

When do pleadings close?

Answer 31

r 169 - On service of reply or 14 days after defence
filed (r 169 UCPR).

Question 32

When can pleadings be struck out? 1 example and rule

Answer 32

r 171 - If a pleading or part of a pleading—
(a) discloses no reasonable cause of action
or defence; or
(b) has a tendency to prejudice or delay
the fair trial of the proceeding; or
(c) is unnecessary or scandalous; or
(d) is frivolous or vexatious; or
(e) is otherwise an abuse of the process
of the court.