WEEK 3 – Notice OF Intention TO Defend AND Pleadings PDF

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WEEK 3 – Notice OF Intention TO Defend AND Pleadings...

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WEEK 3 – NOTICE OF INTENTION TO DEFEND AND PLEADINGS NOTICE OF INTENTION TO DEFEND – PLEADING SUMMARY  P serves a Claim and a Statement of Claim on the D – which set outs the facts that the P alleges establish a cause of action against the D, and the remedy sought  D serves a Notice of Intention to Defend (NOITD) on the P to indicate that they do not accept liability or the remedy sought. A Defence will be attached to the NOITD, which sets out the facts which the D says negative the allegations of fact made by the P in their Claim  The D may also serve a Counterclaim on the P, setting out some facts which the D says establish a cause of action against the P  The P might want to serve a Reply on the D which responds to any allegation of the fact in the Defence which require anything more than a simple denial  The P must serve an Answer on the D in response to a Counterclaim and the Answer works just like a Defence PROFESSIONAL RESPONSIBILITY  Officer of the Supreme Court – s 38 Legal Professional Act 2007 QLD  a solicitor must not engage in conduct which is likely…to be prejudicial to, or diminish the public confidence, in the administration of justice; or bring the profession into disrepute – r 5 Australia Solicitors Conduct Rules o lawyers are part of the court system – not simply agents for their clients – Swinfen v Lord Chelmsford (1860) o the peculiar feature of counsel’s responsibility is that he owes a duty to the court as well as to his client. His duty to the client is subject to his overriding duty to the court. in the performance of that overriding duty there is a strong element of public interest – Giannarelli v Wraith  White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) o Flower and hart commenced an action that had no real chance of success, using the Court as part of a commercial strategy o Pleading fraud when there was no factual basis for the pleading and where no consideration was given to whether there was such a facual basis are circumstances which, of themselves, are sufficient to enliven the jurisdiction to order the Flower and Hart should pay White’s costs of the proceeding UCPR R 5  Philosophy – overriding obligations of parties and court o (1) the purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense o (2) accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules o (3) in a proceeding in a court, a party impliedly undertakes to the court and to other parties to proceed in an expeditious way o (4) the court may impose appropriate sanctions if a party does not comply with these rules or an order of the court UCPR R 171 – STRIKING OUT PLEADINGS  Striking out pleadings o (1) this rule applies if a pleading or part of a pleading –  (a) discloses no reasonable cause of action or defence; or

 (b) has a tendency to prejudice or delay the fair trial of the  (c) proceedings; or  (d) is frivolous or vexatious; or  (e) unnecessary or scandalous; or  (f) is otherwise an abuse of the process of the court o (2) the court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis WHAT IS A NOITD?  Statement by the D that they are going to contest the claim or take some part in the proceeding o Filing a NOITD is necessary to avoid default judgment – r 280 o Only applies to proceedings commenced by a claim – r 234  Cannot file a NOITD in proceedings commenced by application – r 29(1) WHY FILE A NOITD?  D cannot do anything of legal importance without filing a NOITD – r 135 o Except with the court’s leave, a D may take a step in a proceeding only if the D has first filed a notice of intention to defend – r 135(1)  Cannot seek a stay of proceeding  Cannot apply to move to a different district  Cannot apply for further and better particulars o when would leave be granted?  Foley v Farquharson [2003]  A D may defend a proceeding by a solicitor or in person – r 136(1)  If a D is a person under a legal incapacity, proceedings may be defended only be the person’s litigation guardian – r 136(2) o Caltex Oil (Aust) Pty Ltd v The Dredge ‘Willemstad’ PARTICULAR DEFENDANTS  If proceedings are commenced against a business, the NOITD must be in the name of a real person and not the business name – r 91(1), (2) o A list of the names and places of residence of all persons who were carrying on the business at the time that the proceeding was started must be attached to the NOITD – r 91(3) o Court may set aside the NOITD of a person who does not comply with the sub rule (3) – r 91(4)  Partnerships – o If proceedings are commenced against a partnership the NOITD must be in the partner’s own name – r 85(1), (2) o Proceeding continues in the name of the partnerships – r 85(3)  Third parties – o Third parties are required to enter a NOITD – r 197

TIME LIMITS  In a proceeding started by a claim, a NOITD must be filed within 28 days after the day the claim is served – r 137(1) o 28 days does not include the day of service itself – Botha v Carter [2005]

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For interstate service, a NOITD must be filed within the longer of (a) 21 days or (b) the time allowed by law in the place the claim was issued (28 days in QLD) so same effect – s 17(1) Service and Executing of Process Act 1992 Cth For service in NZ, a NOITD must be filed within 30 days – s 13 Trans-Tasman Proceedings Act 2010 Cth

EXPIRED TIME LIMIT  A D may file and serve a NOITD at any time before judgment, even if the D is in default of r 137 – r 138; Cossack Holdings Pty Ltd v Wagner Development Consulting Pty Ltd  However, see Ch 9, Pt 1, Div 2 (r 281 onwards) for possible consequences of not filing within the time limited for filing FORM AND FILING  A NOITD must – o Be in the approved form (form 6) – r 139(1)(a) o Have the D’s defence attached to it – o Be signed and dated – r 139(2) o Be filed in the registry from which the claim was – r 141  Note r 38(1)(b) if the D wants to allege that the claim was filed in an incorrect district registry SERVICE  Rule 142 – a sealed copy of the notice of intention to defend must be served at the P’s address for service – o (a) On the day on which it is filed; or o (b) as soon as practicable after it is filed UNCONDITIONAL VS. CONDITIONAL NOITD  Unconditional NOITD (Form 6) – o Waiver of irregularities in P’s originating process, commencement or service o Constitutes submission to the jurisdiction  See Caltex Oil (Australia) Pty td v The Dredge ‘Willemstad’  Conditional NOITD (Form 7) – o D intends to contest jurisdiction o D does not intend to waive an irregularity in the P’s proceeding o See r 144(1) UCPR; Hooper v Robsinson [2002] o No need to file defence at same time – r 144(3) o Must file application for an order pursuant to r 16 within 14 days, otherwise it becomes an unconditional NOITD – r 144(4), (5) RULE 16 ORDER  Rule 16 Setting aside originating process  The court may – o a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or o b) declare that an originating process has not been properly served; or o … o e) set aside an originating process; or

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(f) set aside service of an originating process; or Stay a proceeding; or … (i) make another order the court considers appropriate

WHEN TO APPLY FOR A R 16 ORDER   

Forum non conveniens – court can exercise discretion that justice and convenience of parties best suited in another court Service – eg. a P serves on a solicitor but the solicitor doesn’t have instructions to accept service Contract – term of the contract specify a different jurisdiction for contractual disputes – Roy v Dahl

EFFECT OF CONDITIONAL NOITD  D is not waiving any possible irregularities in the originating process – Capewell v Seltino Pty Ltd [1986]  If D seeks more than a declaration about jurisdiction or an irregularity, it may amount to submission to jurisdiction and waiver of the right to object to the court’s jurisdiction – Laurie v Carroll HOW TO RESPOND TO AN ORIGINATING APPLICATION – R 29  R 29 Notice of Address for Service o 1) a respondent may not file and serve a notice of intention to defend an application o 2) however, the respondent may file and serve a notice of address for service in the approved form (form 8) o 3) the court may require a respondent to file and serve an notice of address for service in the approved form o 4) rule 17 applies in relation to a notice of address for service as if the notice were an originating process and the respondent were an applicant o 6) failure to file or serve notice of an address for service does not affect the respondent’s right to be heard on the hearing of the application...