Part 4.1 - Certification Requirements Flashcards
41 Overarching obligations certification by parties on commencement of civil proceeding - personally certify read OO and paramount duty - with first SD - not if represented and has made certification in another proceeding in same jurisdiction in the past 2 years
(1) Each party must personally certify they have read and understood the OO and the paramount duty
(2) (a) Must be filed with the first substantive document and
(b) otherwise per the court rules
(3) Litigation guardian or similar rep can make certification on behalf of party
(4) And if person has no meaningful control of proceeding due to statute or insurance contract, person with control (eg, insurer) can make the certification
(5) Not required to make the certification if represented by a LP (a) and party is/have been involved in another proceeding in the same jurisdiction and made that certification within
(i) period specified by rules of Court (ii) or if not period specified, 2 years and (b) the LP makes the certification of the foregoing matters.
4.09.1 For purposes of s 41(5)(a)(i), specified period is period of two years prior to date of certification under s 41(5)(b).
Proper basis certification 42 (first SD, subsequent SD adding/subbing party, claim/COA, defence, material alleg/denial/non-admin, any significant SD amendment) - each claim has proper basis
(1) LP must file a proper basis certificate in the following circumstances:
(a) On filing of first substantive document
(b) On filing of any subsequent substantive document which:
● (i) Adds or substitutes a party
● (ii) Makes, adds or substitutes a claim or CoA
● (iiI) Makes, adds or substitutes a substantive defence or substantive matter by way of response or reply
● (iv) Makes, adds or substitutes a material allegation denial or non-admission of fact or law
● (v) Makes any significant amendment to a SD
(c) In accordance with rules of court/ (d) as directed by Court
(1A) In the case of a legal proceeding involving allegations of fact, the LP must certify that on legal/factual material available:
(a) Each allegation of facts (b) each denial (c) each non-admission has a proper basis
(1B) In the case of a proceeding commenced by OM
seeking a particular legal relief or remedy, LP must certify, as case requires, that on the legal and factual material available:
● (a) claim or response to claim has a proper basis; or
● (b) The question posed by the party to the Court, or a response to a question posed, has a proper basis
(1C) Don’t have to file one if rules of Court say you don’t b.c. admin in nature – per r. 4.10(1), this includes processes in the Court for registration or enforcement of judgments
(2) Proper basis cert. must be in accordance with court rules.
(3) Determination of “proper basis” by an LP
(a) Re: factual allegation or denial, must be based on a reasonable belief as to truth or untruth of the matter
(b) As to non-admission, is that LP doesn’t know, and therefore cannot say, whether fact alleged or denial is true/untrue
(c) As to any claim etc, must be based on a r’ble belief that claim/response to claim, Q/response to Q has proper basis. (4)(a)/(b) If not legally represented, have to file one yourself
43 Pre-litigation requirements compliance certification by parties or legal practitioner
(1) Each party to civil proceeding to which Part 3.1 of Chapter 3 applies, or that party’s legal practitioner, must certify whether the pre-litigation requirements have been complied with.
(2) If pre-litigation requirements set out in s 34(1) and (2) have not been undertaken by the certifying party, the pre-litigation requirements compliance certification must set out briefly the reasons why those requirements have not been undertaken.
(3) pre-litigation requirements compliance certification must be— (a) in writing; and (b) filed with first substantive document filed by party; and (c) otherwise in accordance with court rules.
44 Urgent filing of documents and certification - if urgent, file without certifying, but must then file ASAP
(1) if as matter of urgency a document is required to be
filed in CP, a party to proceeding or a LP acting for them may file the document without complying with the applicable
certification provision of this Part.
(2) person must file relevant certification in compliance with relevant section as soon as practicable after filing document.
45 Proceedings may be commenced or SDs filed despite failure to certify
Unless a court otherwise orders, a court may not prevent the commencement of CPs in the court or the filing of any SD by a party to a CP merely because of failure to comply with any certification requirement under this Part.
46 Court may take failure to comply into account (in costs; orders re procedural obligations; any other orders)
Can account failure to comply with certification requirement (a) in determining costs in proceeding generally (b) making any order about the procedural obligations of parties to the CP
(c) making any other order considers appropriate.
