4 Instituting proceedings

Additional factors which may be taken into account eg

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Additional factors which may be taken into account: eg group is representative of a significant public concern Has an ‘established interest in the area’ Standing threshold is arguably higher for a group than for an individual.
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Capacity Capacity Parties to civil proceedings must have recognised legal capacity to sue / be sued. Legal capacity determined by character of parties, not the rights involved. Eg partnerships: can sue/be sued in the firm name R 17.01 or name of the partners (or representative proceeding) Minors or handicapped persons must sue or defend by a litigation guardian – R 15.02
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Description of Proceedings Description of Proceedings brought by a Litigation Guardian brought by a Litigation Guardian In the title: AB, an infant, by CD her litigation guardian Plaintiff And XYZ Defendant In the statement of claim: 1. Plaintiff AB is a minor and sues by her litigation guardian, CD.
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Distinction: cause v. matter -Most common civil cause - action - commenced by writ -covers disputes involving factual issues Matter: -no dispute with another party -legal issue to be addressed by court -nowadays term much more widely used – lost much of its technical meaning Originating process
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Originating Process In Victoria, 2 principal forms of originating process: Writ Usual process – r 4.04. Identifies 1 or more defendants against whom a claim is made. Originating motion Limited circumstances – rr 4.05-6. Required where no defendant, under some legislation and rules of court Commonly used in equity and probate Proceed by way of affidavit (no pleadings or discovery) NB: see also Motion-usually inter partes interlocutory application eg discovery
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Originating Motion Originating motions used primarily for resolving legal rather than factual disputes . Rule 4.05 When originating motion required A proceeding shall be commenced by originating motion— (a) where there is no defendant to the proceeding; (b) where by or under any Act an application is authorised to be made to the Court; or (c) where required by these Rules. Rule 4.06 Optional commencement by originating motion A proceeding may be commenced by originating motion where — (a) it is unlikely that there will be any substantial dispute of fact; and (b) for that reason it is appropriate that there be no pleadings or discovery.
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Indorsement on Originating Motion Indorsement on Originating Motion Rule 5.05 Rule 5.05 Must specify: Relief / remedy sought Act under which claim made, if any Question of law to be answered, if any Pleadings not required
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WRITS - Rule 5.04(1) WRITS - Rule 5.04(1) Writs must contain an indorsement General Indorsement puts the defendant on notice of the nature of the claim which will be fully set out in the Statement of Claim (1 st pleading). Sets out: nature of the claim cause of action relied upon, & relief/remedy sought (Rule 5.04(2)(b)) Special Indorsement = Statement of Claim
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INDORSEMENT What to do where cause of action is raised in the Indorsement but not in the Statement of Claim?
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