Rules UCPR Flashcards
Starting proceedings rule?
Rule 8; starting proceedings.
What are the types of originating process under UCPR provided for by the rules, and what rule?
Rule 8:
- claim
- application
- notice of appeal
- notice of appeal subject to leave
What is an application in, about or pending trial, hearing or outcome, and is that an originating process? What rule?
Rule 8: Interlocutory application, not an originating process.
Why is it important as to when a proceeding precisely commences? What rule contemplates this?
Significant as statutes require certain steps be done prior to proceedings being instigated.
How must a proceeding be started generally? What Rule
Rule 9: Claim compulsory, unless rules permit proceeding started by application.
When is a proceeding not started by claim generally, what are the requisites? What rule?
Rule 10: Application compulsory where person applies to court for order or relief:
(a) the act/rules do not say type of originating process to be used or
(b) a type of originating process (other than claim or application) is required/permitted under a law
When can a proceeding be commenced by application? What rule?
Rule 11: Application permitted.
(a) only/main issue is an issue of law & substantial dispute of fact unlikely; or
(b) no opposing party, or not intended to serve a party with the originating process;
(c) there is insufficient time to prepare a claim because of urgency
What originating process ought be used for recovery of debt?
Ordinarily claim, if involving substantial disputes of fact.
When can an oral application be done? What Rule?
Rule 12: Oral Application permitted;
(a) urgent relief sought; and
(b) lawyer undertakes to file an application within time directed by the Court; and
(c) Court considers it appropriate
What happens if a party incorrectly commences a proceeding by claim or it might be more convenient to have the proceedings started by application? What Rule?
Rule 13: proceeding incorrectly started by claim.
(1) if court considers proceeding ought to have been application, or would be more convenient to continue as application;
(2)(a) Court can order proceeding continue as if started by application; and
(2)(b) give directions for conduct of proceeding;
(2)(c) make other order considered appropriate
What happens if a party incorrectly starts proceeding by application, or it is more convenient to have the proceeding continue as if started by application? What rule?
Rule 14: proceeding incorrectly started by application - court can order proceeding continue as if started by claim if it should have been started, or more convenient to do that and order that any affidavits filed be treated as pleadings, alone or supplemented by particulars.
Does the matter require resolution of factual issues.
What happens if an originating process is an abuse of process, frivolous or vexatious?
Rule 15: Registrar may refer issue of originating process to court;
Registrar can refer originating process to the court and court can direct registrar to issue or refuse to issue it without leave of the court.
May cases may be abuse of process/vexatious but this rule only contemplates those most blatantly identified
Anshun case?
For rule 15; registrar refuse to issue originating process;
Abuse can include attempt to re-litigate matter or where relief could have been sought in previous proceeding.
In what circumstances can the Court set aside an originating process? What rule?
Rule 16: Setting aside originating process;
Court can:-
declare not been properly started
declare not properly served
set aside order for service for OP
set aside order extending service period for OP
set aside OP
set aside service of OP
stay proceeding
set aside or amend an order under rr 126(1) 129G(1)
make other order court considers appropriate
NB: rule 371, failure to comply is irregularity, not nullity
How is the court guided when setting aside an originating process? What rules?
Rule 16: Setting aside originating process;
Rule 5; guides the court, so application to set aside that alleges minor technical faults in drafting or service not likely to be entertained
What is an unconditional intention to defend? What Rule
R 144: Conditional notice of intention to defend
deft who wants to challenge jurisdiction of court, or assert irregularity, must file conditional notice to defend and apply for order under r 16 within 14 days.
This does not apply to objecting to starting a proceeding in a district of a court other than rule 35.
What are the requirements of statements in pleadings? What Rule?
Rule 149: Statements in pleadings;
- be brief as the case permits (avoid prolixity)
- statement of all material facts the party relies, but not evidence those facts are to be proved by
- state specifically any matter, if not stated, would take the other party by surprise
- sub to r 156 (Court power to grant general relief) state the relief sought
- if claim or defence under an act is relied on - identify it
- Party can also plead a conclusion of law, raise a point of law, if the party pleads the material facts that support the conclusion or point
What is a pleading for a plaintiff? What rule?
UCPR Dictionary: Pleading for plaintiff defined - concise statement in a claim of the material facts on which plaintiff relies.
Where does a pleading go, for a plaintiff? What rule?
UCPR Dictionary: Pleading goes into a claim for the plaintiff.
Claim is defined as a document under ch2 pt3 starting a proceeding, r 22, which includes a statement of claim.
Therefore pleadings for plaintiff can go into the statement of claim, attached to a claim.
Cousins Securities Case
Pleadings
pleading must allege all the material facts required to formulate a complete cause of action known to law but, subject to some specific requirements
Pleading must not simply allege all evidence, but must specifically plead any relief sought.
What is the principle function of pleadings?
Define the issues in dispute between the parties; and
apprise each party of the other’s case for trial.
Robinson v Laws
Pleadings
For pleadings, rule 149, pleadings that are prolix/execessively repetitious can be struck out, esp if avoidable by simple drafting techniques, as will be a breach of requirement to be brief.
What is important about pleading material facts? What rule?
Rule 149(1)(b) - material facts to be plead not evidence by which those are to be proved.
Pleading consecutive propositions of evidence will likely breach
Melco Engineering Case
Pleadings
If a party pleads evidence, instead of material facts, the other party is not obligated to respond to that, and will not amount to deemed admission pursuant to rule 166
UI International Case
Pleadings
For overlap in rule against pleading evidence and obligation to plead something to avoid taking party by surprise (r149(1)(c)). Seems permissible for the latter to plead extrinsic evidence or context to be admissible in aiding construction of contract.
What matters are to be specifically pleaded? What Rule?
Rule: 150, matters to be specifically pleaded (not limiting 149).
(a) breach contract
(b) all damages claimed
(c) limitation defence.
(d) duress
(e) estoppel
(f) fraud
(g) illegality
(H) interest for damage
(i) malice or ill will
(j) mis prepresntation
k (motive, intention, other condition of mind
(l) negligence or contributory negligence
(m) payment
(n) performance
(o) part performance
(p) release
(q) undue influence
(r) voluntary assumption of risk
(s) waiver
(t) want of capacity
(u) testator not know/approve will contents
(v) will not properly made
(w) wilful default
(x) anything else required by form or PD
What is the consequence of not pleading a specific matter enumerated in R 150?
Rule 150: if pleader fails to plead a matter that is specifically enumerated, may be precluded from leading that evidence or cross examining witnesses.
Illustrate by example of cause of action for contract breach to recover damages, how the matter pleaded in accordance with rr 149, 150?
Per 149; allege; parties, the contract (and consideration), terms, terms breached, and loss suffered. This would satisfy this general rule.
Per 150; in advancing that cause of action (if relevant) plaintiff would need to plead motive, or intention or condition mind etc.
Rule 150 requires what two categories of things to be specifically pleaded?
A list of enumerated things, and per sub (2) any matters are claimed to be an inference under sub (1) must also be claimed.
What happens if a pleader complies with r 150(1) but not r 150(2)?
At trial the party may not be able to rely on inferences which otherwise might have been available to it
What are the pleadings rules and their interrelation for damages pleadings?
R 150(1)(b) requires every type of damage be pleaded.
R 155 requires nature/quantim of damages to be pleaded.
For general damages must include nature of loss/damage suffered AND the circs in which it was suffered AND basis the quantum has been calculated.
Pleader should note that the defendant is entitled to identification of the causual link between their impugned conduct and the plaintiff’s loss.
What is R 150(4) about?
In a defence or a pleading after a defence a party must speficially plead a matter that:
(1) matter that makes a claim or defence not maintainable
(2) shows transaction is void or voidable
(3) if not pleaded might take a party by surprise
(4) raises a question of fact not previously claimed
How might r 150(4) operate when it comes to a breach of contract procceding?
If a defendant pleads illegality, duress or fraud as a defence, then this rule requires the plaintiff to respond because defence have raised a new issue.
If the argument was however that one party reads a contract one way and the party reads it another, there is no reply necessary. Would involve repleading the facts.
Rule 151?
Presumed facts; party does not have to plead a fact if the law presumes it in their favour or the burden of proving the fact does to lie with the party.
This does not apply if it is necessary to plead the fact to comply with rule 149 or meet a denial by another party.
What’s an example of a presumption per rule 151?
In defamation proceeding, Falsity of defamatory words is presumed and burden of proving truth is on the defendant.
How are spoken words and documents to be pleaded? What Rule? And why?
R 152: Spoken words and documents.
pleading may state the effect of the words or document, as briefly as possible, unless precise words are material.
Rationale; to overcome prolix.
What rule 152, when might precise words be material, and what is the consequence of that?
In defamation action, precise words are material and r 152 not enlivened.
What rule governs ‘condition precedent in pleadings’ and what does it provide?
R 153 Condition precedent.
(1) allegation of performance/occurrence of condition precedent is implied in party’s pleading
(2) party who denies performance/occurrence must specifically plead it
What is condition precedent?
condition agreed between the parties or imposed by statute, that must come to pass, before party entitled to succeed in an action
What’s important in distinguishing condition precedent from material fact? Think about the council rates case?
For r 153, condition precedent must be distinguished from material fact that must be pleaded. Court in Gilbert’s case; council’s right to sell land under law for rates arrear must be specifically pleaded.
What are some examples of condition precedents for the purpose of rule 153?
Readiness and willingness allegation, by party claiming specific performance of contract (so would be implied).
Readiness and willingness is also an element of cause of action however may be treated as a condition precedent for pleading purposes.
Fulfilment of a condition precedent to an insurer’s liability need not be pleaded in a claim.
What rule governs inconsistent allegations or claims in pleadings?
R 154; Inconsistent allegations or claims in pleadings.
Where might a pleading draft be sloppy when it comes to inconsistent allegations or claims in pleadings? What Rule?
Rule 154: Inconsistent allegations or claims in pleadings.
words “further or alternatively” or “further and alternatively”. If subsequent plea to the one before is inconsistent, must only be advanced as “alternatively.”
What happens if a party purports to allege inconsistent allegations or claims but they’re really pleading an inconsistent factual basis? What Rule?
Rule 154:Inconsistent allegations or claims in pleadings.
Cannot plead an inconsistent factual basis (Issitch Case).
What happens if a party tries to plead something as an alternative but it is within their knowledge? What case and what rule is concerned?
Rule 154: inconsistent pleadings.
Issitch Case
Party will not be permitted to plead two sets of alternative facts, where one version of the facts must be known to be false?