Initiating proceedings (UCPR + FCR)

Question 1

How are proceedings started under the UCPR? (Explain)

Answer 1

Proceedings start when originating process is issued by court r 8 including claim, application, and appeal.

1. Proceedings should be commenced by claim substantial dispute of facts is likely (r 9) (i.e. breach of contract, personal injury, debt recovery, partnership dispute).
2. Proceedings should be commenced by application given issue of law and dispute of facts unlikely (r 11) (judicial review, injunction, warrants, transfer to another court).
3. Proceedings should be commenced by application given urgent nature of relief sought (r 11) (i.e. injunction).

Question 2

When can you make an oral application?

Answer 2

1. Oral application permitted where urgent relief is sought and undertaking to file originating proceeding is given by lawyer (r 12)

Question 3

To which courts do the UCPR apply?

Answer 3

Civil proceedings in supreme, district and magistrates (r 3)

Question 4

To which courts do the FCR apply?

Answer 4

Federal court (r 1.01)

Question 5

If proceedings are started incorrectly what can you do?

Answer 5

Proceedings started incorrectly can either withdraw proceedings or make an application pursuant to either rule 13 or 14.

Question 6

How are proceedings commenced? (FCR)

Answer 6

Proceedings commenced by application (r 8.01).

Application must be accompanied by statement of claim where applicant applies for relief that includes damages (r 8.05). An affidavit is appropriate where dispute concerns largely questions of law.

If seeking damages application must attach statement of claim, however if not seeking damages may only include affidavit (r 8.05)

Question 7

How is the claim to be prepared? (UCPR)

Answer 7

Claim and statement of claim prepared as per r 22-23 and served on respondent (r 105 if person).

Question 8

How is the application to be prepared? (UCPR)

Answer 8

Application and affidavit (r 430) prepared as per r 26 and served on respondent as least three (3) days before hearing of application subject to exceptions (r 27)

Question 9

Explain service generally (UCPR)

Answer 9

Originating process must be personally served on person (r 105-106) or if person is out of QLD service in accordance with SEPA (Cth) (r123).

If other party is company must be served in accordance with Corporations Act (r 107).

If service is impactable consider application for substituted service (r 116).

Question 10

Provide three examples of causes of actions that should be claims….

Answer 10

1. Personal injury matter…likely to involve dispute regarding facts as to duty of care, standard of care owed, and causation
2. breach of contract…likely to involve a dispute regarding facts as to the existence of a contract, liability and quantum owed…
3. defamation proceeding…likely to involve a dispute regarding facts as to whether publication has occurred and if so whether material is defamatory

Question 11

How do you transfer proceedings between different court jurisdictions in QLD?

Answer 11

Pursuant to s 25 of the Civil Proceedings Act 2011, you can apply to the Supreme Court to:

1. transfer a proceeding in the Mags Court or District Court to the Supreme Court OR
2. transfer a proceeding in the Supreme Court to the Mags Court/District Court.

(District court can do the same under s 26 of the Civil Proceedings Act 2011).