originating processes - O4 and 5

Question 1

How is a proceeding commenced?

Answer 1

By way of a writ or an originating motion

Question 2

Which proceedings are commenced by way of a writ?

Answer 2

Writ - all proceedings commenced by writ unless provided for in r1.12, r4.05 or r4.06.

Question 3

Which proceedings are commenced by way of an originating motion?

Answer 3

Originating motion:
* No defendant, Authorised under an Act or Required by the rules (r4.05); or
* Unlikely there will be any substantial dispute of fact, and there will be no pleadings/discovery (r4.06)

Question 4

What needs to be filed when commencing proceedings?

Answer 4

Two types of certificates must be filed with the commencement of all civil proceedings - Part 4.1 CPA:

1. Overarching obligations certification, to be in Form 4A (O4.09 SCR)
2. Proper basis certification (to be made by lawyer) in Form 4B

Question 5

What does overarching obligations certificate entail?

Answer 5

o S.41 CPA parties must certify that they have read and understood the overarching obligations and the paramount duty.
o S.41(2) must be filed with the first substantive document in the proceeding (ie S.O.C. on the writ, or the defence).
o Also must file on any subsequent substantive document which:
 Adds or substitutes a party;
 Makes, adds or substitutes a claim or cause of action;
 Makes, adds or substitutes a substantive defence or substantive matter by reply;
 Makes, adds or substitutes a material allegation, denial or non-admission;
 Makes significant amendment to a first substantive document.
o Exceptions:
 If a party represented by a legal practitioner, has certified in another civil proceeding within the previous two years (r4.09(1)). In that case, the lawyer can certify the fact instead of a party certifying to the overarching obligations. S41(5) CPA
 Where a party is represented by a litigation guardian or similar – then the overarching obligations certificate must be filed through the litigation guardian – s41(3)
 Where the party has no meaningful control over the proceeding, then the person with control should file the overarching obligations certificate – s41(4)

Question 6

What does the proper basis certificate entail?

Answer 6

o S.42(1) legal practitioner must certify that on the factual and legal material available that each factual allegation in the document has a proper basis, each denial in the document has a proper basis, there is a proper basis for each non admission.
o A determination on whether a proper basis exists to make an allegation or denial must be based on the reasonable belief as to the truth or untruth of the allegation or denial – s42(3)(a) CPA

Question 7

What happens if the certification has not been complied with?

Answer 7

Failure to certify does not invalidate the proceeding – s46 CPA – court may consider in determining costs and making any orders (s46).

Question 8

What happens if a proceeding is initiated on an urgent basis?

Answer 8

If urgent, must file as soon as practicable after filing the document (s44).

Question 9

Do we need a proper basis certificate for registering or enforcing a judgement?

Answer 9

o need for proper basis certification for registering or enforcing judgement – 4.10 SCR