What needs to be identified in an originating process

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What needs to be identified in an originating process?
- The basis of the claim - Pleading requirements apply to the originating process (e.g. statement of claim) Where to commence proceedings? - Local court up to $100,000 (s 29 Local Court Act ) - District court $100,000 to $750,000 (s 44 District Court Act ) - Supreme court more than $750,000 (s 23 Supreme Court Act ) Factors influencing where to commence proceedings - Nature of the dispute - Amount in dispute - Location of the dispute - Location of the plaintiff - Location of the defendant’s assets PROCEEDINGS SHOULD BE COMMENCED BY STATEMENT OF CLAIM (Rule 6.3 of the UCPR) Service of process a copy of the originating process issued to the defendant to inform them that they are being sued/ to make them aware of the proceedings - Requires personal service, meaning document must be personally delivered to the defendant - Once service is delivered, they will swear an affidavit as evidence of service - Substituted service occurs if personal service is not possible - Service for corporations: posting document to the registered office Requirements for pleadings: - Brief as possible - Must state material facts but NOT provide evidence - Must set out the relief/remedies sought in court - Must be easily navigable Difference between summons and statement of claim: - Statements of claim are used when the proceedings involve disputed contentions of fact and will initiate the pre-trial and trial processes for that purpose. o The kind of proceedings where a statement of claim must be used are specified in UCPR r 6.3. - Summons are used where a question of law (not a substantial dispute of fact), is at issue. Summons initiate a more summary procedure than a statement of claim. o The kind of proceedings where a statement of claim must be used are specified in UCPR r 6.4 Statement of Claim Contents - Court - Parties – names, addresses, contact details - Type of claim, eg Torts – Negligence – Public Liability - Relief Claimed, eg, Damages, Interest, Costs - Pleadings and Particulars - Signature of Legal Representative
- Notice to Defendant o “If you do not file a defence within 28 days of being served with this statement of claim: You will be in default in these proceedings. The court may enter judgment against you without any further notice to you. ...” - How to Respond - Address of Registry of Court Drafting a statement of claim: - Introductory statements: o who the parties are and how they are connected to the dispute. o e.g. If defendant is incorporated the statement of claim should contain an allegation that the party was, at all material times, incorporated… - The body: o In numbered paras, substantive allegations sufficient to establish each element of each cause of action. Usually chronological order is best.

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