Commencement of Proceedings and Pleadings
Commencement and pleadings
This domain tests whether you can start an action correctly and draft a pleading that survives a motion to strike. The examiner focuses on limitation periods, the originating process, the material-facts rule, responses, joinder and amendment.
Core rules
- An action begins with an originating process (often a statement of claim or notice of civil claim) that identifies the parties, the relief sought and the facts supporting each cause of action.
- Plead material facts, not evidence or bare conclusions. Fraud, misrepresentation, breach of trust and special damages usually need particulars. The test on a motion to strike is whether it is plain and obvious that the claim discloses no reasonable cause of action.
- The defendant files a defence; a counterclaim, crossclaim or third-party claim joins additional issues or parties. A reply is needed only to raise new facts.
- Amendments are usually permitted unless they cause non-compensable prejudice or are futile; limitation issues can arise on adding parties or new causes of action.
Worked example
A plaintiff pleads that 'the defendant was negligent' after a fall but gives no date, place or conduct. The defendant moves to strike. The claim is struck with leave to amend because the pleading states a legal conclusion, not the material facts needed to assess whether a cause of action exists.
Traps
- Pleading evidence rather than facts.
- Missing a limitation period or suing the wrong legal entity.
- Failing to plead conditions precedent or special damages.
- Ignoring a counterclaim deadline.