LLB300 Lecture Notes - Lecture 11: Common Rule, Counterclaim, Crossclaim
WEEK 11 LECTURE – PLEADINGS, AMENDMENT AND CROSS-
CLAIMS:
PLEADINGS –
oCommon law form of documents to be filed to outline a case
oUCPR defines pleading as including a statement of claim, defence, reply…
o“formal written stat4ements of the plaintiff’s claim and the defendants defence” –
Cairns, Australian Civil Procedure
oPurpose:
Allows parties to state their case
Gives party notice of allegations
Gives party a fair opportunity to answer allegations
Process has inbuilt incentive to respond – if P’s factual allegation is not
argued, it is taken as being admitted – UCPR r 14.26
Most pleadings tend to address every and any paragraph
Allows the issues to be defined so:
Identify the allegations which are admitted and do not have to be proved
Identify the denied/not admitted allegations
Focus preparation to issues in dispute
Assess prospects of success and possibly negotiate settlement
Informs the court of matters in dispute
Forms a permanent record of the parameters of the case –
Court has an accurate record of the issues litigated to prevent re-litigation
oPleadings should plead “material facts”
Go back to the ELEMENTS
Does not include underlying evidence (distinction is not always clear)
PARTICULARS –
oRefer to particulars of material facts that have been pleaded
oProvide greater detail of broader material facts
oHelp parties know facts to prevent a party being taken by surprise
oGoverned by UCPR Part 15
oNormally set out:
‘Particulars of Negligence:
a. failed to take any protection; ….’
APPEARANCE –
oParty must not take steps in proceedings unless they have filed an originating
process or entered an appearance r 6.1(1)
oEntry of an appearance waives the right to:
Objecting the validity of originating process
Objecting the service of documents
oFor statement of claim:
28 days after service on D; or
Such other time period directed by the court for filing a defence; or
If an application is made to set aside a statement of claim is unsuccessful, 7
days after the refusal of that application
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 11 lecture pleadings, amendment and cross- Pleadings : common law form of documents to be filed to outline a case, ucpr defines pleading as including a statement of claim, defence, reply , formal written stat4ements of the plaintiff"s claim and the defendants defence . Gives party a fair opportunity to answer allegations. Process has inbuilt incentive to respond if p"s factual allegation is not argued, it is taken as being admitted ucpr r 14. 26. Most pleadings tend to address every and any paragraph. Allows the issues to be defined so: Identify the allegations which are admitted and do not have to be proved. Assess prospects of success and possibly negotiate settlement. Forms a permanent record of the parameters of the case . Court has an accurate record of the issues litigated to prevent re-litigation: pleadings should plead material facts . Does not include underlying evidence (distinction is not always clear) Particulars of negligence: failed to take any protection; . ".
