welcome to laws 13017 civil procedure this is topic three instituting proceedings service and notice of intention to defend I'm Andrea Turner in topic three we will be considering how to commence an action in the Supreme Court of Queensland how an action is served on another party and whether the person served wishes to indicate that they intend to defend the action by filing a notice of intention to defend let's take a moment to consider the objectives for topic three in relation to instituting proceedings you should be able to identify the client care implications of instituting proceedings how you actually commence an action in the Supreme Court of Queensland and appreciate the differences between actions matters and motions when we look at service it's important for you to understand that service is the basis of jurisdiction and appreciate how the common law rules for service have been modified by Statute you need to understand how to serve a party either personally or by ordinary service and distinguish when to use either procedure you should note that there are special rules for service in relation to particular parties and for particular types of actions there are time limits applicable to service and it's possible to in certain situations to use substituted service you will also encounter situations where you will need to know how to serve documents outside of the jurisdiction not only outside the borders of Queensland yet within Australia but also beyond the shores of Australia in overseas jurisdictions the last part of topic three deals with the notice of intention to defend it is important to understand this concept and be able to articulate the implications of filing or failure to file a notice of intention to defend the implications can be quite significant such as the entry of a default judgment let's start by looking how you determine what is the right court or Forum in which to commence a proceeding this is essentially governed by a whole host of factors which have depicted in diagram in the diagram on page four of your study guide for example the type of dispute certain types of disputes go to certain types of Court a family law matter would typically typically go to the federal circuit and family cour of Australia the location of the dispute is also relevant did all the factual matters occur in a particular jurisdiction where is the plaintiff located how much is involved because that will help determine which level of Court will be involved where are the defendants assets located this is relevant to the whole issue of execution and Recovery what limitation period applies as there might be might be slight differences between limitation periods between different jurisdictions cost and convenience are obviously an important factor which will help determine the Forum all these factors need to be considered when trying to work out the appropriate forum for your litigation assuming the client wishes to go down the path of litigation there are several client care and ethical requirements that need to be met these client care requirements revolve around communication and cost disclosure in a lawyer client relationship client care means carrying out a clear policy for uring that all contracts made between the lawyer and their client promote the development of a positive and fruitful relationship critical to the development of such a relationship is effective communication and the setting of realistic expectations as to what can be achieved through the litigation process and at what cost the legal profession act 2007 Queensland division contains three division three sorry contains specific ethical requirements concerning disclosure of the cost of litigation the Queensland Law Society has developed a client care rule which requires lawyers to advise their clients about costs at the initial interview it also requires La law firms to establish a client complaint handling procedure and obliges cl solicitors to explain unreasonable delay to their clients it's an ongoing duty to the client a written agreement must be made between a solicitor and their client which sets out the work to be done by the solic solicitor the cost of the work and how fees are calculated the cost that the client may have to pay to the other side in a litigious matter in the event they're unsuccessful and any amounts that the solicitor is likely to incur on behalf of the client such as Court filing fees and barrers fees you will examine all these ethical requirements in much more detail in laws 1313 professional legal uh profession legal professional conduct but they're relevant in this unit in terms of the commencement of litigation before we launch off and commence our litigation we need to consider another preliminary step and that is the notion of a letter of demand a letter of demand is often used by solicitors prior to institution instituting proceedings as a last ditch attempt to resolve a matter or at least start a negotiation process to resolve a matter before incurring the cost of the litigation process when a lawyer is acting for a client the lawyer upon receiving instructions from the client will have M will have to make a tactical decision about whether to reply to such letter of demand clearly sometimes such letters are written without any intention of instituting proceedings however a failure to answer a letter of demand may amount to an admission of its correctness in certain circumstances in the case of Thomas and Holier this is a 1984 case the citation is 156 clr1 152 at paragraph 157 chief justice Gibbs made that point it's not wise to ignore a letter of demand and if your client is going to contest the matter you should clearly respond to the the letter in terms of a denial of its contents assuming the letter of demand did not resolve the matter then it's time to consider commencing proceedings and here we immediately run into some terminology issues procedures which are based on an action contemplate that the dispute primarily con concerns factual issues and anticipates claim pleadings and an eventual trial in open court actions are heard in open court courtrooms which are open to the public procedures based on a matter contemplate that the dispute predominantly involves the resolution of legal issues and the plaintiff wishes to proceed by way of affidavit rather than by way of pleadings these processes are derived from the chamber jurisdiction of the court that is where the plaintiff makes an application to a Judicial officer in Chambers matters are heard in Chambers are closed to the public the third idea is that of a motion which is used where a party applies in open court by Oral application for a favorable outcome the uniform civil procedure rules rule 8 enables four types of originating processes a claim an application a notice of appeal and a notice of appeal subject to leave of the Court rule eight also notes that an application in about or pending the trial hearing or outcome of a proceeding is not an originating process it is in effect what's known as an interlocutory application we will look at interlocutory applications as a separate topic later in this unit a claim is the compulsory procedure rule nine unless an application is required by law under rule 10 or the type of originating process is simply not stated by the act or rule upon which it is based in the case of urgent relief an oral application may be permitted under rule 12 if you make an error and use an incorrect procedure the court may make an appropriate order and give directions to correct that error for example to change a claim to an action or vice versa see rules 13 and 14 the plaintiff must be informed of the claim which must briefly State the nature of of the claim made or relas s in the proceeding and attach what's known as a statement of claim to the claim that's in rule 22 the claim must include a statement about filing a notice of intention to defend rule 23 when we get further on into the unit you'll be drafting a claim so that you get a better appreciation of what they look like and the contents of them an originating application must be in form five the application must according to rule 26 name as respondents all persons directly affected by the relief sought in the application the application must list the affidavits to be relied on by the applicant in the hearing the application must specify the orders or other relief sought in the proceeding if the application is made under an act it must State the name and section and number of the ACT applications must specify the day set for the hearing of the application and affidavits to be relied on by an applicant at the hearing of an application these afford davits must be filed and then served on each respondent at least three business days before the day set for the hearing of that application under rule 28 another type of application is an application in a proceeding using form 9 according to rule 31 after an originating process has commenced a proceeding applications can be made at a later date within that proceeding this application is not an originating application which we discussed earlier this is an application in an existing proceeding which has already been commenced by an originating process if you're wondering whether I expect you to be familiar with the rules and the forms Associated legislation practice directions and case law the answer is yes this is the very fabric of civil procedure which you do need to know to understand this unit you need to be aware of the pre-action protocol and ethical considerations mentioned in the notes remember there is a distinction between disputes involving factual issues and those involving legal issues disputes involving factual issues are commenced by a claim unless there is insufficient time due to urgency where an application may be used according to rules 9 and 11 the claim is used in most situations the claim must briefly State the nature of the claim or the relief sort under rule 22 disputes involving legal issues are commenced by originating application which uses affidavits rather than pleadings this is common in equity and probate matters and see rule 11 what's the duration of an originating process a claim remains in force for one year starting on the day it is filed under rule 24 a regist can renew a claim if it is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim the regist May renew the claim for period for further periods of not more than one year at a time starting on the day after the claim would otherwise have ended after 5 years leave of the court is required we're going to now shift our Focus from originating process to service of that process service is the procedure by which a plaintiff informs the defendant of the claim being made there are two types of service personal and ordinary um service is the very Foundation of jurisdiction and is required for originating proceedings it is also an essential requirement of natural Justice ordinary service is required for interlocutory or pre-trial proceedings ordinary service has less stringent requirements when compared with personal service Special Service rules have been developed for certain types of parties such such as corporations and parties under a disability special rules also exist in relation to certain types of actions detailed technical rules have developed in relation to service outside the jurisdiction and when a plaintiff has trouble serving a defendant they may seek an order for substituted service provided that the pro proposed method of service is likely to bring the proceeding to the attention of the defendant let's look at personal service personal service is the very Foundation of jurisdiction see Lori and Carol 1958 98 CLR 310 a superior court will not exercise its jurisdiction unless the person against whom the relief or remedy sought has been served with notice of the proceedings personal service is required for an originating process according to rule 105 if a defendant files an unconditional notice of intention to defend the claim it's taken to have been served on the day on the defendant on the day notices are filed or if a party proves the claim was served on an earlier day then it will be that earlier day according to rule 105 once again there are several situations where personal service is not required even though the process to be served May initiate the proceedings in those situations service may be dispensed with or may be affected in a different way for example expired interim appliations under rule 27 situations where a solicitor accepts service where there's an un or where there's an unconditional notice of intention to defend under rule 105 subsection 2 the study guide contains numerous other examples that you should have a look at so how do you achieve personal service this is set out in rule 106 to serve a document personally the person serving it must give the document or a copy of the document to the person intending to be served however if the person does not accept the document or the copy the party serving it may serve it by putting it down in the person's presence and telling him or her what it is it's not necessary to show the person serve the original of the document there are other situations where consensual or proce presumed service will be sufficient for example service according to the terms of a contract under rule 119 or solicitors undertaking to accept service under rule 115 much more relaxed rules apply with respect to service of interlocutory processes as distinct from originating processes most documents do not require personal service while such documents may be served personally ordinary service by sending or delivering the document to the party's proper address for service is sufficient and often more convenient and inexpensive rule 112 sets out how ordinary service is achieved ordinary Services performed for example by leaving the process with someone who is apparently an adult living at the relevant address informal service where the document has come to the attention of the defendant or has come to the person's possession and no Prejudice arises from that under rule 117 service by fax is rules 212 and 122 service by post rule it's 112 subsection 1B service through document exchange process that's rule 112 subsection 1f and Rule 102 now largely defunct service by electronic means rule2 subsection 1f or under a prescribed practice Direction 112 subsection 1G spend time to look through the various ordinary Service rules particularly rule 112 as it's it's the most common way in which documents are served the rules of Court contain Special Service rules applicable to certain types of parties and we're now going to briefly look at each of these types of parties the first of that is a corporation under rule7 personal service on a corporation must be served by the way provided for the service of documents under the corporations act or other applicable law under the corporations act 2001 Commonwealth section 109x service can be achieved by leaving the document at or posting it to the company's registered office or delivering a copy of the document personally to a director of one of the company who resides in Australia while there are other categories they're the main ones in terms of Partnerships and business names originating processes may be personally served on any one or more of the partners or at the principal place of business on on anyone having control or management of the business at the time of service have a look at rules 83 and 114 persons carrying on a business in the name or style other than his or her name or style may be served in that name or style if the name or style were a firm name and the process is similar to that of the partnership have a look at rule 113 an agent may be served on behalf of a PR principal who is outside the jurisdiction under rule 118 infants that is persons less than 18 years of age can be served through a litigation guardian or if no such Guardian has been appointed through a parent or legal guardian under rule 108 for persons who are impaired for example through mental illness they can be served through their litigation guardian or if none has been appointed an adult who has the care of the impaired person under rule 109 in terms of the crown and judicial offices Services made upon the crown solicitor according to the crown proceedings act 1980 Queensland section 19 with respect to third parties they are served in exactly the same way as if they were a defendant according to rule 195 with respect to prisoners if the Public Trustee is the manager of the prisoners estate under the Public Trustee act 1978 Queensland Park seven then you would serve the Public Trustee assoc otherwise you serve the person in charge of the prison in which the prisoner is incarcerated now let's look at proof of service proof of service is not required when a defendant enters a notice notice of intention to respond a defense or the defendant solicitor endorses acceptance of service in the original process otherwise an affidavit proving service is required and the requirements of this affidavit are all set out in rule 120 all jurisdictions permit substituted Service as an alternative to personal service where personal service has been too difficult or impractical and the substituted method proposed is likely to bring the proceedings to the defendant's attention and that's under rule 116 typical methods of substituted service include service by post advertising in a newspaper or in the registry serving someone closely connected with the defendant on the basis that they'll bring the process to the notice of the defendant for example this could be the defendant spouse it could be a solicitor whether currently acting for the defendants or having acted in the past it could be an agent clearly people who are former agents attorneys under a power of attorney and even in some circumstances compulsory insurers let's now look at service out of the jurisdiction for service outside Australia according to the rules of the Court there must be a sufficient Nexus with the jurisdiction this is specified by the rules of the Court the main categories of Nexus are found in rule 124 and there are many of them an example is the proceeding based on a cause of action arising in Queensland it's also possible to serve outside Australia under the rules of Court through diplomatic channels have a look at the uniform civil procedure rules chapter 4 part 7 division 2 it's also possible to serve outside Australia under the ha convention under the uniform civil procedure rules chapter 4 part 7 division 2 for service within Australia you would use the service and execution of process act 1992 Commonwealth which is referred to a sepa or sometimes abbreviated down to seoa this would be for example where you would serve a Queensland process on a defendant in New South Wales or Victoria or Tasmania the previous methods discussed were for service outside Australia in the not in the states and territories of Australia for example it might be in Ghana or England sep section 17 deals with judgments and orders generally a judgment or order requiring the doing of an act by a person should be served before any enforcement action before any enforcement can be had of that judgment or order have a look at ucpr rule 96 and we'll be coming back to this topic of execution in the last topic of the unit I'm only very briefly touching on it here let's now look at the notice of intention to defend which is known as an appearance in other jurisdictions this notice enables the defendant to indicate to the plaintiff that the matter is intended to be defended a defendant files a notice of intention to defend in person through or through a solicor under rule 136 before taking a step in the proceedings and that's rule 135 notices of an intention to defend are filed and served for five reasons failure to file a notice of intention to defend will enable the plaintiff to obtain judgment in default of the appearance it informs the plaintiff that the action is to be defended the name of the defendant solicitors and an address where the service can be affected in the case of an unconditional appearance to acknowledge the Court's Jurisdiction as a precondition before a defendant can take a step in the proceedings otherwise then would leave of the court and finally in the case of conditional appearances to prevent waver of the procedural irregularities and of the right to object to the Court's Jurisdiction the time limit for the notice of intention defend is set out in rule 137 in a proceeding started by claim a notice of intention to defend must be f within 28 days after the day the claim is served however if Seer applies a notice of intention to defend must be filed within the time limit by of section s of that act and that's 21 days an unconditional notice of intention to defend waves objections to the jurisdiction of the Court any irregularities in the originating process known to the defendant or obvious on the face of the process irregularities as to commence and irregularities in service hence there is then no need to prove service a conditional notice of intention to defend provides a method of approaching the court whilst preserving rights to object to procedural irregularities or jurisdiction have a look at the ucpr rules form 7 a party can withdraw a notice of intention to defend under rule 36 but the main impact of a failure to enter a notice of intention to defend is the risk of the plaintiff entering a default judgment that's very important concept because default judgments are common to prevent that happening if you have a defense that you wish to run you need to file a notice of intention to defend so overall in topic three we've examined three main ways of commencing proceedings service and the notice of intention to defend when commencing proceedings you should consider jurisdiction client care rules and ethical considerations there are two ways to commence an originating process a claim and an application service is the procedure by which a plaintiff informs a defendant of the claim being made personal service is the very Foundation of jurisdiction and is required for originating processes it is also an essential requirement of natural Justice the rules provide for two main types of service personal service and ordinary service personal service is required for originating processes otherwise ordinary service is usually sufficient it is possible to have substituted service in certain circumstances where personal service is too difficult or impracticable and that the method of substituted service proposed must be likely to bring the proceedings to the defendant's attention Special Service rules apply in relation to different types of parties and different types of notices notice of intention to defend known as appearance in other jurisdictions this notice enables the defendant to indicate to the plaintiff that the matter is intended to be defended a notice of intention to defend may be either conditional or unconditional and once filed prevents the entry of a default judgment and that's it for this topic in the next topic we will be examining parties and Joiner non-compliance Amendment and time until then bye for now