Civil Procedure and Commencement of Proceedings
What the exam tests
Civil Procedure and Commencement of Proceedings examines whether you can choose the correct originating process, identify the proper parties, plead a complete cause of action and serve it within time. The examiner is looking for a disciplined pre-action analysis, not a narrative of facts.
Core rules
- A claim form or originating claim is normally required where the dispute turns on contested facts and needs pleadings, disclosure and oral evidence; an originating application is reserved for proceedings where there is no substantial dispute of fact, such as construction of a document or a statutory application.
- Issue before service. A document that has not been issued cannot be validly served. Service out of the jurisdiction needs permission, a jurisdictional gateway, a serious issue to be tried and proof that the forum is clearly the appropriate one.
- Check limitation at the first interview. Amendment will not rescue a new cause of action that was already statute-barred when added.
- Pre-action conduct matters: a letter of demand should state the case, the remedy and a reasonable deadline. Settlement offers should be marked without prejudice save as to costs.
Worked example
A client purchased a defective machine from a foreign supplier. The failure is disputed. The correct start is an originating claim, not an originating application, because the court will need to resolve conflicting evidence on fitness for purpose. Before issue, check limitation, identify the contracting entity rather than its parent, confirm the dispute resolution clause, and prepare a service-out application. If the clause is an arbitration agreement, the court may stay the claim.
Traps
Using the wrong originating process; serving before issue; suing a parent for a subsidiary’s debt without a basis; overlooking limitation because negotiations were ongoing; failing to check a mandatory arbitration or escalation clause.