Overview
This lecture covers the commencement of civil proceedings in the Supreme Court of Queensland, the rules and methods of serving documents, and the notice of intention to defend.
Commencing Proceedings
- Identify the appropriate court based on dispute type, location, monetary amount, and other practical factors.
- Important client care involves clear communication, cost disclosure, and written agreements as per the Legal Profession Act 2007 (Qld).
- Letter of demand is often sent prior to litigation to attempt resolution.
- "Actions" involve factual disputes and pleadings; "matters" involve legal issues and affidavits; "motions" are applications made orally in open court.
- Four originating processes: claim, application, notice of appeal, and notice of appeal with leave (UCPR rule 8).
- Claim is the primary method; applications are for legal issues or urgency (UCPR rules 9-12).
- Originating processes have forms and content requirements (see UCPR rules 22-28).
- A claim is valid for one year and may be renewed if service is unsuccessful (UCPR rule 24).
Service of Process
- Service is how a plaintiff informs the defendant of proceedings and establishes court jurisdiction.
- Two types: personal service (required for originating process) and ordinary service (for interlocutory documents).
- Service must comply with rules; substituted service is allowed if direct service is impractical and the alternative will likely inform the defendant (UCPR rule 116).
- Proof of service usually requires an affidavit unless defendant responds or acknowledges service.
Special Rules for Service
- Corporations: serve at registered office or to a director (Corporations Act s109X).
- Partnerships/business names: serve a partner or manager at the principal business place.
- Minors and impaired persons: serve through litigation guardian or appropriate adult.
- Crown, judicial officers, prisoners, and third parties have specific rules for service.
- Service outside Queensland: within Australia, use the Service and Execution of Process Act 1992; outside Australia, follow UCPR or Hague Convention.
Notice of Intention to Defend
- Defendant must file a notice of intention to defend within set time limits (28 days for claims, 21 days under SEPA).
- Filing indicates the defendant will contest the matter and prevents default judgment.
- Conditional or unconditional notices affect rights to challenge jurisdiction or procedural issues.
- Failure to file allows the plaintiff to obtain default judgment.
Key Terms & Definitions
- Originating Process — Initial court document starting proceedings (claim or application).
- Personal Service — Delivering court documents directly to a party.
- Ordinary Service — Less formal document delivery, e.g., by mail.
- Substituted Service — Court-approved alternative when standard service fails.
- Notice of Intention to Defend — Defendant’s formal response indicating an intent to contest.
- Default Judgment — Judgment in favor of plaintiff when the defendant fails to respond.
Action Items / Next Steps
- Review UCPR rules and forms for claims, applications, and service.
- Examine special service rules for different parties in the study guide.
- Prepare to draft a claim in the upcoming unit section.
- Read about parties, joinder, non-compliance, amendment, and time for the next topic.