Topic 2: Commencing proceedings

Question 1

Topic 2: Commencing proceedings

Answer 1

Topic 2: Commencing proceedings

Question 2

Letter of demand

Answer 2

Letter to the other party to try keep it out of court and resolve it. It will state that if something is not done then it will go to court.

It is relevant for costs to show the court you tried to resolve it.

Question 3

Originating Proceedings

Answer 3

Includes:

Starting proceedings

Claims

Applications

Question 4

Originating Proceedings: Starting proceedings

Answer 4

Proceedings start when the originating process is issued by the court.

It provides for claims, applications, notice of appeal.

An application in, about or pending the trial hearing or outcome of the proceeding is not an originating process.

Question 5

Originating Proceeding: Claims

Answer 5

A proceeding must be started by a claim. A claim is the client telling their version of the story.

• must be in approved form
• pft must state briefly the nature of claim and relief sought
• file claim in District/Mags court & shows them how they have jurisdiction
• Must be filed and served to the Dft

It must tell the dft:

• time period for filing a NOTD and that if they dont, then a default judgement may be obtained against the dft without further notice.

Claim is in force for 1 year from filing.

Question 6

Originating Proceeding: Applications

Answer 6

Applications are compulsory if proceeding must be started by an application if:

• only or main issue is an issue of law & substantial dispute of fact is unlikely
• no opposing party to the proceeding or not intended to serve any person with originating process
• insufficient time to prepare a claim because of the urgent nature sought.

Question 7

Filing Documents

Answer 7

A document may be filed by:

• Delivering to registry personally, by post or by electronic means.

Filing personally once sealed and noted on court file. Until then, it is not filed.

Via Post is risky. Must contain copies for the court, one to come back and one to be served on each dft. Including filing fee and self-addressed prepaid envelope to send back to you.

Question 8

Stale Proceedings

Answer 8

Claims are only valid for 12 months from when they are filed in court if not served.

If you are unable to serve, you can renew the expiry date. Must show reasonable efforts to service.

After 5th renewal, you must seek leave of the court.

Question 9

Proceedings commenced incorrectly

Answer 9

Make application to the court to rectify and court will make orders accordingly.

Question 10

Principle of Finality

Answer 10

The court should have all people with claims for the same cause of action heard together so there is a uniform outcome.

Question 11

Principle of Finality: Res judicata

Answer 11

Cannot litigate a cause of action already been heard

Question 12

Principle of Finality: Issue Estoppel

Answer 12

Factual issues determined in one case cannot be opened up again in another case involving different parties.

Question 13

Several Causes of Action in a proceeding

Answer 13

Pft may include in the same proceeding as many causes of action as they have against the Dft.

• If brought seperate, a common question of law or fact may arise
• where relief is sought has arisen out of the same event
• Where the court gives leave

E.g. Tort and Contract heard together.

Question 14

Necessary Party

Answer 14

Each person necessary to court to make a finding must be included as a party. If a Pft refuses to be included, they may be included as a Dft.

Question 15

Joint entitlement

Answer 15

If you have a Pft with a claim to which another Pft has the same joint entitlement or right for that claim, the court wants to hear both parties in the claim.

Question 16

Joint or Several Liability

Answer 16

Joint liability is where you have 5 parties jointly liable as a group.

Several liability is where you have individual parties being liable together and on their own. If A, B, C and D are being sued, but A and B don’t have money to pay, then you can sue C and D for it.

Question 17

Inclusion of multiple parties to a proceeding

Answer 17

Where there is more than one Pft or Dft, they can act in one proceeding.

Where the inclusion is inconvenient, you can make an order to have them removed.

Question 18

Person under legal incapacity

Answer 18

If they are too young or impaired, they need a litigation guardian.

The 28 days limitation period wont run until they have a litigation guardian.

Question 19

Partnerships and Business

Answer 19

Where its a business, you need to do a business name search to find out who the legal entity is.

If you cant find who, use their trading name until they inform you of who the legal entity is.

Question 20

Bankrupt

Answer 20

Cannot start or continue any litigation or court process.

Question 21

Interpleader order

Answer 21

A party can apply to the court for an interpleader order if the person is under liability for a property which expects will be subject to adverse claims of 2 or more people.

E.g. A owes C. A sues B and assigns money from B to C. But A also owes D, so now C and D are asking B for the money.

Question 22

Consolidation of proceedings

Answer 22

Court may order 2 or more proceedings to be consolidated if it is the same question involved and the decisions will affect each other.

Question 23

Representative parties

Answer 23

If there are a number of people with the same claim against an entity, it makes sense to have them heard under one class action.

Question 24

Third party proceedings

Answer 24

Where there is a matter up and running and a party wishes to make a claim against someone who is not included already to the entirety of the claim or part (indemnity or contribution).