To commence legal proceedings you must use an originating process. This process can take the form of a statement of claim, a summons or a cross-claim. This procedure provides notice to a defendant to signify your intention to lodge an application to commence proceedings. Here are the key details of an originating process.
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Purpose
The purpose of an originating process is to alert the defendant that the case is being brought against them. The Uniform Civil Procedure Rules provide that except by leave of court, a party may not take any step in proceedings (including an appearance in court) unless that party has filed an originating process. Additionally, to properly draft an originating process, you must include:
- A seal of the court on the first page;
- The case number or unique identifier; and
- The listing date (if allocated by the court registry).
In NSW, an originating process may either be a statement of claim or a summons. You must use a statement of claim when the proceedings involve a substantial dispute of fact. This will initiate the pre-trial and trial processes for that specific purpose. Common causes for issuing a statement of claim include relief for debt, tort, fraud, certain breaches of duty, and defamatory matters.
You must use a summons where the issue is a question of law. This results in summons initiating a summary procedure. Common causes for issuing a summons include where there is no defendant, an application for leave to appeal, an application for discovery, and proceedings on a stated case.
Service
Service of an originating process must be served personally to conclusively make sure the defendant is aware of the proceedings. Note that you may serve certain procedures in absence of the defendant, such as search orders or cross-claims against active parties. Furthermore, an originating process must be served within 6 months after it was filed, although if in the District Court, this is reduced to 1 month unless the defendant is outside of NSW (where it reverts back to 6 months). It is important to note that failure to serve the originating document within the allotted time does not prevent the plaintiff from filing fresh proceedings with a new originating process.
You must serve the originating process within the boundaries of the court’s jurisdiction. Although, cases concerning the Supreme Court are permitted to be served anywhere in Australia as the Supreme Court has unlimited jurisdiction. Also, you may serve an originating process overseas but it is essential that you specify this to that extent within the document. In this situation, you may not need to undergo personal service but you must comply with the laws of the jurisdiction.
Conclusion
To formally begin proceedings against a defendant, you must lodge an originating process. Be sure to determine whether you require a statement of claim or a summons (if in NSW) and appropriately draft your originating process in accordance with the Uniform Civil Procedure Rules. Also, ensure you duly serve it on the defendant and be aware of the limited time frames.
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