Pleadings

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Pleadings are formal claims, defences and replies stated in documents in a trial scenario.

  • The first pleadings is the originating process which starts a dispute: r 6.2 UCPR. It takes two forms:
    1. Statement of claim - used for disputed contentions of fact (starts a trial).
    2. Summons - used for questions of law only (starts a summary procedure).
  • The defendant must enter an appearance or risk a default judgment.
    • An appearance usually takes the form of a defence: r 6.9.
    • Alternatively, the defendant can object to the jurisdiction, originating process or service of the originating process through a notice: r 12.11.
  • Pleadings can be withdrawn: r 12.6 (2)
    • Should only be granted when there was an actual mistake: Group (Australia) v Karabassis.
  • Relief is restricted to those claimed in the pleadings: Banque Commerciale SA v Akhil Holdings Ltd.
    • Trial by ambush (alleging things not in the pleadings) is not allowed r 14.14.
    • However, plaintiff cannot circumvent a certain explanation by simply not addressing it in the pleadings: will still need to disprove things: Kasupene v Ajax Foundry.
    • Plaintiff is allowed to attack the defence in cross-examination with claims which were not in its statement of claim: ASIC v Rich.
  • Pleadings must contain all material facts: Charlie Carter Pty Ltd v Allied Employee’s Association (WA).
    • Material facts to be verified by an affidavit: r.14.23.
  • No evidence in pleadings: r 14.7.
  • Particulars to be provided (especially in breach of fraud, misrepresentation, trust, wilful default, undue influence, negligence and breach of a statutory duty): r 15.1.
    • The court may make an order for particulars: r 15.10.
    • Where there has been no departure during the trial from the pleaded cause of action, a conflict between evidence and the particulars previously given will not disentitle a party to a verdict based upon the evidence: Dare v Pulhamwhere.
  • Pleadings can be struck out if they(:r 14.28)
    1. Do not disclose a reasonable cause of action/defence.
    2. Have tendency to cause prejudice, embarrassment or delay.
      • A pleading is 'embarrassing' where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him: Priest v NSW.
    3. Are an otherwise abuse of process.

This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, Chapter 8.

Initiating Proceedings - the 'Originating Process'

[1] The ‘originating process’ is the process by which proceedings are commenced, and includes the process by which a cross-claim is made.[2] In NSW proceedings can be initiated by using a statement of claim or summons.[3]The date of filing the originating process is conclusive for the purposes of any limitation defences.

  • Statements of claim are used when the proceedings involve disputed contentions of fact and will initiate the pre-trial and trial processes for that purpose.
    • The kind of proceedings where a statement of claim must be used are specified in UCPR r 6.3.
  • Summons are used where a question of law (not a substantial dispute of fact), is at issue. Summons initiate a more summary procedure than a statement of claim.
    • The kind of proceedings where a statement of claim must be used are specified in UCPR r 6.4.

There are a lot of rules governing the how the originating process is set out, including things like acceptable margin sizes, bold print lettering etc.[4] More importantly, a statement of claim must state the following crucial elements:

  • Describe the parties and their addresses (including address for the service of documents).[5]
  • The relief claimed and any question to be determined by the court.[6]
  • A notice to the defendant indicating the consequences if the defendant does not file a defence or notice of appearance.[7]

An originating process should abide by s 345 of the Legal Profession Act 2004 (NSW), namely, that there is a reasonable prospect of success.

Appearance

[8] After the originating process has been served, the defendant needs to respond to it (non-response amounts to an agreement with the plaintiff's claims). This is done through 'entering an appearence', which is usually done by filing a defence to the court and serving it on the plaintiff.[9] Entering an appearance notifies the court that the defendant intends to take a part in the proceedings, and constitutes the defendant's recognition of the court's jurisdiction.

  • Entering an appearance also bars the defendant from claiming that the originating process has failed to comply with the rules..
  • The appearance or defence must be filed within 28 days if the originating process is a statement of claim,[10] and before the return date if the originating process is a summons.[11]

If a defendant wishes to object to the jurisdiction, originating process or service of the originating process, an appearance should not be entered.

  • Instead, a notice of motion pursuant to UCPR r 12.11 should be made (asking for the relevant order to be made, such as setting aside the originating process).

If a defendant fails to reply within the prescribed time period, he is considered in 'default', which allows the plaintiff to apply for a default judgment.

Pleadings

The term 'pleading' is used to describe formal claims, defences and replies in a trial scenario.

  • The first pleading is usually the originating process (the statement of claim), and the defendant's entering an appearance in the form of a defence constitutes their pleading.
    • Every allegation made in the statement of claim which is not denied is deemed to be accepted.
    • On the other hand, the plaintiff, by default, is presumed to deny all of what is said in the defence.
  • After the defence, the plaintiff can usually make another pleading in the form of a reply (so long as it is not a mere denial of the defence, because that's presumed already).
  • Further pleadings (such as cross-claims and set-offs) will require leave of the court.

Pleadings are dealt with in Part 14 of the UCPR.

Withdrawing pleadings

[12] A party may seek the leave of the court to withdraw any matter that is contained in a defence or a subsequent pleading: UCPR r 12.6 (2). This was discussed in Group (Australia) v Karabassis:[13]

  • Facts: the defendant, in its defence, admitted certain things which were alleged in the statement of claim. He is now is looking to 'withdraw' that admission from its pleading, claiming that the admission was an error, and pointed to contradictory statements in that same defence where he said he did not admit to those things.
  • Held: the leave will be granted only where there is an actual mistake. In this matter, it indeed seems like there was a mistake. The defendant was allowed to withdraw its admission from its pleading.

Relief is restricted to that available in pleading

[14] Once an allegation is made (in the statement of claim) and denied (in the defence), the issue is ‘joined’. Relief is then only available based on those joined issues (ie, only on what was alleged), unless the parties have since deliberately chosen some different basis for the determination of their respective rights and liabilities.

  • In simple terms, if something wasn't alleged in the pleadings, the court cannot award relief for it, unless the parties clearly both changed their focus during the conduct of the trial.

The issue of joined pleadings and relief was discussed in Banque Commerciale SA v Akhil Holdings Ltd:[15]

  • Facts: the plaintiff brought a claim against three defendants, which included allegations of fraud against the first two but not the third. The Court of Appeal held that the third defendant was fraudulent. The third defendant appealed that fraud was not brought up against it in the pleadings and therefore relief cannot be given on that ground.
  • Held: Pleadings serve to ensure the basic procedural fairness requirement that a party should have the opportunity to meet the case against it. Relief is restricted to that available on the pleadings, unless the parties deliberately chose a new basis for the determination during the trial.
    • In the present case, the defendant had no chance to defend itself against fraud because it wasn't in the pleadings.
    • Also, it doesn't look like the defendant agreed to choose fraud as a new basis.
    • No relief can be given for fraud.

This principle was discussed further in ASIC v Rich:[16]

  • A plaintiff is allowed to attack the defence in cross-examination with claims which were not in its statement of claim, because obviously the plaintiff can't anticipate all of the defendant's claims when he was writing his statement of claim.

Material Facts

[17] The pleadings should provide those facts that are critical to supporting each of the elements of the cause of action. For example, a claim for negligence should detail the facts that give rise to a duty of care, and a claim for breach of contract should detail the facts that the contract exists and what its terms were.

This was discussed in Charlie Carter Pty Ltd v Allied Employee’s Association (WA):[18]

  • A cause of action must be alleged with particularity. Ie, a plaintiff must state sufficient particulars of his alleged cause of action, which will enable the defendant either to admit it or deny it or otherwise plead a defence to it.
  • This is to ensure that the defendant knows in advance the case they have to meet.

Evidence

[19] Evidence is the means by which the material facts are to be proved, and thus not pleaded (since they are given afterwards, in evidence).[20] Specific conversations or specific terms from a document should not be detailed in pleadings, they belong in evidence.[21]

No Conclusions of Law

[22] Conclusions of law should not be passed off in pleadings at material facts - ie, a plaintiff can't allege that negligence occurred as a matter of fact - they must provide the material facts to show that it occurred.

Surprise

[23] Surprise (also called trial by ambush) occurs when allegations which were not in the pleadings are raised at the trial. Strictly speaking, surprise is not allowed: UCPR r 14.14 However, there are certain situation in which parties will still be required to prove/disprove something which wasn't in the pleadings.

This was discussed in Kasupene v Ajax Foundry:[24]

  • Facts: in a case for negligence, the parties agreed that a mechanical failure would not be discussed and therefore was not in the pleadings, although a mechanical failure constituted one of the only two plausible explanations (the other being the negligence of an employee of the respondent). The appellant concluded that, since mechanical failure was not in the pleadings, the only explanation is the negligence of the respondent. The trial judge ruled that mechanical failure was a possibility which was not negated by the appellant and therefore negligence was not proved. The appellant appealed saying that it was not open for the trial judge to say that.
  • Held: the appellant sought to prove negligence and therefore had to negate other reasonable explanations - he can't just circumvent a certain explanation by simply not addressing it in the pleadings. That the respondent did not raise it as a defence is irrelevant - the respondent didn't have an onus to raise mechanical failure as a defence, it was the onus of the plaintiff (the appellant) to negate other possibilities in order to sufficiently prove negligence.

Still, trial by ambush is now forbidden in Australia. Trial by ambush used to be a common phenomenon in the adversarial system, however, the system is moving towards a cards on the table approach, and surprise is now prohibited. A good illustration of this is given in Glover v Australian Ultra Concrete Floors:[25]

  • Facts: after already paying workers compensation to the appellant in a different setting (thus giving the impression that they recognise responsibility), the respondent suddenly gave testimonies in a trial that they believe the appellant was lying about the accident (alleging fraud). The appellant claimed that this constituted trial by ambush - he wasn't prepared with witnesses to back his case.
  • Held: the failure of the respondent to raise the fraud argument in the pleadings meant that it constituted trial by ambush, especially considering his effective admission of guilt in the workers compensation payments. The appellant is therefore excused for failing to provide explanations for that defence because he was taken by surprise.

Verification

[26] Material facts written down in the pleadings are still not treated as 'facts' - they have to be verified by an accompanying affidavit, which is a statement of belief in the truth of the allegations of the pleadings.[27]

Particulars

[28] In order to further explain the materials facts, 'particulars' need to be provided.[29] Particulars are basically just the specific details of the facts which allow a sharper definition of the issues. Examples include providing itemised lists of all sums owed, listing all relevant dates at which breaches defaults were made etc.

  • Particulars are provided for in Part 15 of the UCPR.
    • Amongst a general requirement for providing particulars, the rules require particulars in cases of fraud, misrepresentation, breach of trust, wilful default, undue influence, negligence and breach of a statutory duty.
  • The court may make an order for particulars - asking a party to provide certain particulars.[30]

Particulars are not considered to be a part of the pleadings (although they are often provided in the same document as the pleadings). This means that the opposing party usually has no obligation to respond to the particulars, and that particulars do not cure defective pleadings.

This was discussed in Automotive Repairers’ Association (Political Action Committee) v NRMA Insurance:[31]

  • The idea is that particulars only help to further explain a cause of action which is already mentioned in the pleadings. New causes of actions cannot be introduced in the particulars section.
  • Recently, a more flexible view has been accepted, holding that particulars, to some extent, may be taken into account for the purpose of determining whether the statement of claim amounts to a statement of all the material facts.
  • In practice, defective pleadings are often cured by the voluntary delivery of particulars (since an order would result in costs orders etc).

And in BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd (No 2):[32]

In essence, the distinction between particulars and material facts is less rigidly applied these days - technical objections raised to pleadings on the ground of alleged want of form are not so enthusiastically received.

  • The Court’s focus is on clarity, so that the opposing party knows the case to be met and the issues for trial are identified.

Particulars and Evidence

[33] The line between particulars and proper evidence is hard to distinguish - it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it , as particulars in the pleadings so that the cause of action is adequately explained.

This was discussed in Douglas v John Fairfax & Sons:[34]

  • Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars supplied, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning.

Possible conflicts between evidence and particulars were discussed in Dare v Pulham:[35]

  • In general, the relief granted to a party must be founded on the pleadings. However, where there has been no departure during the trial from the pleaded cause of action, a conflict between evidence and the particulars previously given will not disentitle a party to a verdict based upon the evidence.

Striking Out Pleadings

[36] The court has the power to strike out any pleadings if they (a) do not disclose a reasonable cause of action/defence, (b) have tendency to cause prejudice, embarrassment or delay, or (c) are an otherwise abuse of process: UCPR, r 14.28 Striking out a pleading does not usually entail the dismissal of proceedings - it means the pleading is struck out and the party will usually have the chance to submit a new one.

This was discussed in Priest v NSW:[37]

  • A pleading is 'embarrassing' where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him. Examples include a pleading susceptible to various meanings, inconsistent allegations, confusingly intermixed alternatives, or irrelevant allegations made to increase costs
  • A pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action.

And in Silverside Superfunds v Silverstate Developments':[38]

  • The plaintiff needs to establish only that it is arguable, upon the facts alleged, that there be such a cause of action. It is not essential that such a cause of action must exist, let alone that it must succeed.

The failure to provide reasonable causes of action was illustrated in the case of Donaldson v Commonwealth of Australia:

  • "The material facts which might give rise to a cause of action are not set out coherently or at all in the Amended Statement of Claim. Every now and then a fact appears in the midst of allegations which assume that the reader has knowledge about the events derived from outside the document. As I mentioned earlier, had it not been for the Defence filed by the Commonwealth I would not have any understanding of the factual matrix and background that gave rise to the present proceedings. For that reason alone the further pleading should be struck out".

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 437-9.
  2. Civil Procedure Act 2005 (NSW, s 3.
  3. UCPR r 6.2.
  4. UCPR rr r 4.2r 4.9.
  5. UCPR r 7.1
  6. UCPR r 6.12
  7. UCPR r 6.13 for statement of claim, r 6.14 for summons.
  8. BKL, 439-40.
  9. UCPR r 6.9.
  10. UCPR, r 14.13.
  11. UCPR, r 6.10.
  12. BKL, p. 440-2.
  13. [2008] NSWDC 87.
  14. BKL, p. 442-3.
  15. (1990) 169 CLR 279).
  16. [2006] NSWSC 712.
  17. BKL, p. 448.
  18. (1987) 13 FCR 413.
  19. BKL, p. 449.
  20. UCPR, r 14.7.
  21. UCPR, r 14.9.
  22. BKL, p. 450.
  23. BKL, p. 450-3.
  24. [2006] NSWCA 309.
  25. [2003] NSWCA 80.
  26. BKL, p. 450-3.
  27. UCPR, r.14.23.
  28. BKL, p. 454-6.
  29. UCPR, r 15.1
  30. UCPR, r 15.10.
  31. [2002] FCA 1568.
  32. [2002] FCA 87.
  33. BKL, p. 457-8.
  34. [1983] 3 NSWLR.
  35. [1982] HCA 70.
  36. BKL, p. 459-60.
  37. [2006] NSWSC 12.
  38. [2008] NSWSC 904.
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