Lecture 4- 21 August 2018- 70104 Civil Practice PDF

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Lecture on Initiating Proceedings...

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70104 Civil Practice

21/08/18

Civil Practice- Lecture 4 Introductory Note:

 

No lectures for 3 weeks until 18th September The Essay is due on the 17th September.

Initiating Proceedings; Commencing Litigation and Drafting Pleadings.  Initiating Proceedings - Proceedings commence by the originating process, after case analysis and the jurisdiction has been established. S.3 CPA- ‘The Process by which proceedings begin’’

- Rule 6.2 (1) UCPR- The Process can include the writing of a statement of -

claim or a summons. Exemplars of Statements of claim exist on the NSW Justice website, and solicitors regularly use these to draft theirs.

 Statement of Claim (SOC) - The SOC includes the following: - Details of the court e.g. District or Supreme? - The Parties - Type of claim e.g. Nuisance, Trespass, Breach of Contract -

Solicitors Relief sought by plaintiff e.g. Damages Pleadings and particulars e.g. Material Facts Notice to the defendant

- If no response is made by the defendant within 28 days, the court may issue a default judgement.

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 Summons - It’s very similar to a SOC -

However, it doesn’t include pleadings or particulars. Summons are issued where a question of law is involved and initiates a summary procedure. Whereas SOC are disputes of fact R 6.3 (UCPR)- SOC is required for disputes involving debts, torts, fraud allegations, claims for possession of land. R 6.4 (UCPR)- Summons required on technical issues involving a question of law. Such as, when a legally incapable person needs a tutor appointed in proceedings.

 Pleadings - Documents that are filed in court and exchanged between parties that set out SOC and the defendant’s response. It doesn’t include Summons.

- Needs to be read carefully- r 14.26 UCPR says that if a claim is not denied by another party, it is taken as an admission of liability.

- Poorly drafted documents can be struck out by court and the case dismissed - They can be amended within 28 days under r 19.1 (1) without the leave of court, as long as no trial date is fixed. Defence then has 14 days to amend their claim r 19.2

- The court can give leave under s 64(1) CPA at any time during the proceeding -

and s 64(2) says the court must consider the overriding purpose when doing so. In seeking leave, the party must file and serve a notice of motion and affidavit noting the reasons for it Part 18 UCPR

 Particulars - Specify the cause of action in the pleadings, like saying how the driver was negligent. R 15.1- To enable the other party to identify case they must meet

- R 15.3- Give particulars of fraudulent conduct - R 15.5- Particulars of tortious conduct - R 15.9- Must be set out separately from pleadings

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 Joining Parties - Where two or more defendants or plaintiffs have the same interest in the case and both be included in the case. R 6.19 UCPR- Rules for Joining parties

- Common question of law or fact - The parties’ claims arise out of the same event or series of events - The court can also give leave to join the parties.

 R 6.18- Joining Causes of Action - So long as the defendant and plaintiff are in the same capacity in respect of each cause of action

 Steps following drafting the claim - File the claim to the Supreme Court Registry. The date filed is also the date of lodgement. (r 4.10(1)). Plaintiff can lodge additional copies sealed for service. (r 4.12). SOC is valid for 6 months after it has been filed. (r 6.2(4)).

- Originating process must be served to the defendant. (r 6.2(3)).

 Service - It’s part of the rule of law, informing the defendant of the claim being filed against them. Must serve party as soon as possible. (r 10.1(1)).

- Originating documents in the supreme court have to be personally served and -

not posted. (r 10.20(2)a). Personal service can be done by the plaintiff, process server or NSW Sheriff. Documents can be left with a person or in the presence of a person who does not accept it. However, the nature of the document must be explained. (r 10.21) If there is violence or threat thereof, the document can be left as near as practicable. (r 10.21) Affidavit of service is required, detailing when, where, how and by whom it was served by. Also detailing anything that was said by the other person. (r 35.8).

 Personal Service on Corporations and Businesses -

(RR 10.9-10.11)- Mailing or leaving a document with person 16 years and over Serving a copy to a principal officer or by mailing it- (r 10.22)

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 Substituted Service - For defendants who have been evasive. (r 10.14) - Considerations include a practical impossibility to serve, after the applicant has taken all reasonable steps to effect service

- The court has to satisfied that the substituted service will bring proceedings to the attention of the defendant.

 Service Outside NSW but in Australia - Service and Execution of Process Act 1992 (Cth) SEPA - Issued outside NSW, but still bound by NSW rules (s15 SEPA)  Service Internationally - By private means using local process servers. Part 11, Division 1A UCPR. No need to be personal, but according to local law. Through diplomatic channels such as using Australian Embassies.

- Subject to the Hague Convention. Part 11A UCPR. - Bilateral Treaties

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