The Claim and Statement of Claim
If you have decided to commence civil proceedings and determined (after consulting your lawyer) that the Court proceeding should be commenced by claim, as opposed to application, notice of appeal or some other legal process, in Queensland you will be required to file two approved Court forms, known as a Claim (Form 2) and Statement of Claim (Form 16).
Completing these forms is an exercise in drafting and compliance with technical rules, and not a matter of checking and populating boxes. The formal rules that govern the preparation of these forms are contained in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), which apply to civil proceedings commenced in the Supreme Court, the District Court and the Magistrates Courts of Queensland.
In the Claim, the plaintiff must state briefly the nature of the claim or relief sought in the Court proceeding and attach a Statement of Claim to the Claim. A Claim, for example, arising out of a breach of contract, negligence, or breach of fiduciary duties, may seek an Order for damages, account of profits, specific performance, injunctions, declarations, the imposition of a constructive trust and the list goes on.
The Claim must also contain a statement on it telling the defendant the relevant time period for filing a Notice of Intention to Defend and that if the defendant does not file a Notice of Intention to Defend within time, a Default Judgment may be obtained against the defendant without further notice. For a Claim filed in the Magistrates or District Courts of Queensland, the plaintiff must also show in the Claim that the Court has jurisdiction to decide the Claim.
To see a simple example of a Claim click here.
Statement of Claim
The Statement of Claim contains a statement of facts relevant to the cause of action and relief sought in the Claim. The form of this statement is closely regulated by the UCPR, which requires that the statement:
- be as brief as the nature of the case permits;
- contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved;
- contain particulars to define the material facts to prevent any surprises at trial;
- state specifically any matter that if not stated specifically may take another party by surprise;
- state specifically any relief the party claims;
- if an Act is relied on to support the claim, identify the specific provision of the Act; and
- plead a conclusion of the law, but only if the party also pleads the material facts in support of the conclusion.
Some of the causes of action, defences and other matters, which the UCPR requires to be specifically pleaded are:
- breach of contract or trust;
- every type of damage claimed, including, but not limited to, special and exemplary damages;
- defence under the Limitation of Actions Act 1974 (Qld);
- interest (including the rate of interest and method of calculation) claimed;
- malice or ill will;
- motive, intention or other condition of mind, including knowledge or notice;
- negligence or contributory negligence;
- part performance;
- undue influence;
- voluntary assumption of risk;
- want of capacity, including disorder or disability of mind;
- that a testator did not know and approve of the contents of a will;
- that a will was not properly made;
- wilful default;
- a transaction is void or voidable;
- any inferences;
- a claim for a debt or liquidated damages;
- anything else required by an approved form or Court practice direction to be specifically pleaded.
To see a straightforward example of s Statement of Claim click here.
If the Claim and Statement of Claim do not comply with the formal rules of the Court, as contained in the UCPR and any practice direction, the Court may strike the whole or parts of the Statement of Claim or dismiss the Claim altogether if the pleading:
- discloses no reasonable cause of action;
- a party fails to a take a step required by the UCPR or comply with the rules of the UCPR or an Order of the Court;
- has a tendency to prejudice or delay the fair trial of the proceeding;
- is unnecessary or scandalous;
- is frivolous or vexatious; or
- is otherwise an abuse of the process of the Court.
Adverse costs consequences may attach to a party whose pleadings have been struck out in whole, or part, or claim dismissed altogether, which is why it is recommend that a commercial litigation and dispute resolution lawyer be consulted prior to taking any formal steps.
To speak to one of our expert dispute resolution lawyers please call Certus Legal Group on 07 3106 3016 or contact us using the form on this page.
This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.