PLEADINGS
What are they?
° Documents delivered between parties to litigation in which they set out the material facts they intend to allege at the hearing.
° Definition found in Supreme Court Act 1995 s241.
“Pleading includes any petition or summons and includes the statement in writing of the claim or demand of any plaintiff and of the defence thereto and of the answer of the plaintiff to any set-off or counterclaim of a defendant”
Purpose of pleadings
1 Give notice to the other side of case to be met at trial and hence assist in pre-trial fairness.
§ Bank Commerciale SA (en liquidation) v Akhil Holdings Ltd
Facts:
§ In 1978 the plaintiff sued the def. bank and two other parties in the Supreme Court of NSW.
§ bank alleged the other def. had caused the bank to transfer from its ownership certain shares in a mining company which were held by it in trust for the plaintiff.
§ Each def. filed a defence pleading that the action was statute barred.
§ Pl. did not reply to the bank’s defence, but in its reply to the defences of the other parties, it alleged that is action was one in respect of a fraudulent breach of trust by the bank.
§ A copy of that reply was served on the bank’s solicitors.
§ The bank did not appear at trial.
§ Trial judge gave judgment for def. s. On Appeal, Court found that the bank was a party to the fraudulent breach. Bank appealed to High Court.
Held:
Appeal allowed. A case is only committed to be decided upon the basis that’s different in the pleadings if the parties agree to what has been alleged and Courts permit that departure.
2 Assist in determining evidence, and limiting discovery and interrogatories
3 Provide a record of issues raised. The parties can be met by pleas of res judicata or issue estoppel if they seek to re-litigate them.
° Res judicata – estoppel : prevents a party from re-litigating the same matter.
° Issue estoppel arises if a particular issue has been determined between the parties through an earlier issue. They way to determine that is by examination of the pleadings in the earlier proceedings.
4 May assist to determine the appropriate manner of trial.
Procedural Requirements – Rule of Form
Rule 146(1) : the pleading must state:
° number of the proceeding
° description of pleading e.g. claim
° filing date
° signature of solicitor of party filing
° consecutively numbered on each page
° divided into paragraphs, and if necessary, subparagraphs, with separate allegations;
° If settled by counsel – state counsel’s name
Notice
Rule 146(2) - Pleadings other than reply must have notice under Rule 164 informing that party about time for serving pleadings in response under Rule 164
Filing and Service
Rule 147 – all pleadings need to be both filed and served (new rule).
The Content of Pleadings
Fundamental Rule of Pleading – Rule 149
R149(1) – Each pleading must:-
(a) be as brief as the nature of the case permits; and
(b) 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; and
(c) state specifically any matter that if not stated specifically may take another party by surprise; and
(d) subject to Rule 156, state specifically any relief the party claims; and
(e) if a claim or defence under an Act is relied on – identify the specific provision under the Act. (Statutory Provision).
“material facts”
The facts essential to establish a cause of action.
Example:
Do not say:
“In the course of a conversation over lunch on 5 May 1999, the Plaintiff advised the def. that he was sick of paying a fortune for imported parts for his 1993 Porsche and that he was going to “quit it” for only $16,000. The def. agreed that this was a good price, and the parties made arrangements for the delivery of possession of the vehicle to the def. on 10 May 1999.”
Use:-
“On or about 5 May 1999 the Plaintiff orally agreed to buy and the def. agreed to sell for $16,000 a 1993 Porsche motor vehicle.”
***Don’t include evidence***
Philipps v Philipps
§ The def. s were in possession of Picton Castle and were in receipt of its profits. The plaintiff claimed entitlement on the basis of ancestry with minimal details provided and also claimed that:
“Under and by virtue of certain deeds, assurances, wills, and documents in the possession and control of the def. s, the plaintiff is entitled to possession of the said premises and hereditaments claimed herein in the plaintiff’s writs as such heir male, heir-at-law, and residuary devisee, or as being the person entitled to the baronetcy now held by the plaintiff”.
§ The def. challenged the sufficiency of the statement of claim. The challenge was unsuccessful at trial but successful on appeal as the pleading did not meet requirements.
Statutory provision
Hunt Contracting Co v Roebuck Resources NL
Conclusion of Law - Rule 149(2)
r.149(2): In a pleading a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.
Rationale:
It is for the court to determine what the effect of the law is on the facts as you pleaded them.
Creedon v Measey Investments Pty Ltd
° The pleading becomes more intelligible if the legal consequence for which the pleader contends is also pleaded.
° It has been established even prior to the Rules that you could do that provided you fully pleaded the material facts in support of the particular conclusion of law;
see also – Re Vandervell’s Trusts (No 2)
Example:
On or about 6 April 1999 the def.
(a) sold the plaintiff’s watch to Jenny Johnson;
(b) delivered the watch to Jenny Johnson;
(c) thereby converted it.
Rule 150 – Matters to be specifically pleaded
Matters to be specifically pleaded:
1. breach of contract or trust
2. every type of damage claimed including, but not limited to, special and exemplary damages
3. defence under the Limitations of Actions Act 1974
4. duress
5. estoppel
6. fraud
7. illegality
8. interest
9. malice or ill will
10. misrepresentation
11. motive, intention or other condition of mind, including knowledge or notice
12. negligence or contributory negligence
13. payment
14. performance
15. part performance
16. release
17. undue influence
18. voluntary assumption of risk
19. waiver
20. want of capacity
21. testator did not know and approve the contents of a will
22. that a will was not properly made
23. wilful default
Damages
If the claim is for a debt or liquidated damages only the plaintiff must state the following details in the statement of claim:
(1) particulars of the debt/liquidate demand
(2) if interest is claimed – particulars of rule 159
etc…
Miscellaneous Rules of Pleading
Spoken words and documents – Rule 152
Unless precise words are material, a pleading may state the effect of spoken words or a document as briefly as possible without setting out all of the spoken words or document.
§ Document è it is not sufficient simply to refer to the document without making clear its alleged effect; Bloeman v Atkinson.
Conditions precedent – Rule 153
An allegation of the performance or occurrence of a condition precedent necessary for the case of party is implied in the party’s pleading.
Presumptions – Rule 151
A party is not required to plead a fact if the law presumes the fact in the party’s favour, or the burden of proof does not lie with that party.
Usual Pleadings
1 Statement of Claim
2 Defence
3 Counterclaim
4 Reply
5 Answer (if there is a counterclaim)
Statement of Claim
Procedural Requirements
° Form 16 – approved form
° Statement of Claim must be attached to the claim - Rule 22
° Therefore, no prescribed time for a service of a statement of claim
1. Introductory Statements
Need to work through introductory statements – e.g. relationship of parties to each other.
2. Substantive Allegations
Must disclose a cause of action. Must establish essential elements and must be found in the pleading. Consider e.g.
° negligence – duty of care, breach, damage not too remote; McCauley v Hamilton Island Enterprises Pty Ltd
° contract – offer, acceptance, consideration, intention to create legal relations;
° defamation – by imputation defamatory to plaintiff, must be published, damage, must be referrable to the plaintiff – specific reference to the plaintiff or by a circumstance from which some members of the public would assume the plaintiff was being referred to; Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville
° nuisance – private nuisance – occupation of land and unreasonable interference with that occupation, damage.
Set out substantive allegations in as near as chronological sequence as possible.
Other Notes:
1. Do not try to anticipate a defence eg. that a def. is estopped from relying on a denial.
2. can request a jury in a statement of claim; Rule 472 –
Defence
Procedural Requirements
° A notice of an intention to defend (other than a conditional notice of an intention to defend r144) must have the defence attached to it see r 139;
° The effect is that it must be filed within 28 days of the service of the statement of claim; r137 .
° Form 17 for defence.
Substantive Requirements:
R150(4)
In a defence or a pleading after a defence, a party must specifically plead that-
a) the party alleges makes a claim or defence of the opposite party not maintainable; or
b) shows a transaction is void or voidable; or not specifically pleaded might take the opposite party by surprise or
c) if not specifically pleaded might take the opposite party by surprise; or,
d) raises a question of fact not arising out of a previous pleading.
Permitted pleas
r. 165 (1): a party may plead an admission, denials, non-admissions
Alternative Arguments:
° ie. inconsistent allegations
° are allowed as long as it is clear they are pleaded in the alternative r. 154(1) (use separate paragraphs etc)
° however, a party can’t make an allegation or a new claim in a pleading if that is inconsistent with an allegation in another pleading of that party unless the previous pleading is amended; r154(2)
1. Notice to Admit Facts of Documents- r 189
° The first party may serve notice to admit facts and documents (r 189(1))
° Party served with notice is to respond with notice of dispute within 14 days - otherwise party is taken to admit facts or authenticity of documents specified in the notice (r 189(2))
° Admission so made can only be withdrawn with leave of the court (r 189(3))
° Costs sanction r. 189(4): if the party disputes a fact or document, and afterwards the fact of document is proved the party ust pay the costs of proof, unless court otherwise orders.
2. Denial r. 166
Requirements of Denials
° Rule 166(4): a party’s denial of fact must be accompanied by a “direct explanation” for the party’s belief that the allegation is untrue
° If there is no requisite direct explanation, then in default, the party is taken to have admitted the allegation r. 166(5)
° A denial contained in the same paragraph as other denials is sufficient if it is a specific denial of the allegation in response to which it is pleaded.
The Negative Pregnant
° Def needs to take special care when pleading to negative proposition: See Johnson v Sewell 8.5.13C; Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72.
° Therefore, must particularise the affirmative allegation.
§ Johnson v Sewell
Pl. was e’ee of the dept of Harbours and Marines and he sued for negligence in respect of injuries which he sustained while working on a ship in dock. In part of his statement of claim, he alleged that he was leaving the ship by a particular ladder that was “the only available means of egress from the said ship provided by the def for the Pl.” The Def. denied that allegation. The Judge noted that the denial was actually pregnant with a positive allegation, that there were other means of egress available and said that the details of the other means should be particularised in the pleading.
Costs sanction
Rule 167 - Where an allegation is denied or not admitted that ought to have been admitted costs may be awarded against party so pleading.
3. Non-admissions - Rule 166
r 166(3) Party may plead non-admission only if
° the party has made inquiries to find out whether the allegation is true or untrue;
° the inquiries for an allegation are reasonable having regard for the time limited for filing and serving the defence or other pleading in which the denial or non-admission of the allegation is contained; and
° the party remains uncertain as to the truth or falsity of the allegation.
Requirements of Non-Admissions
° Rule 166(4): a party’s non-admission of an allegation of fact must be accompanied by a “direct explanation” for the party’s belief that the allegation cannot be admitted.
° If there is no requisite direct explanation, then in default, the party is taken to have admitted the allegation : r 166(5)
° Continuing obligation on party pleading non-admission to make further inquiries that might become reasonable and to amend the pleading if appropriate: r 166(6)
Effect on the Calling of Evidence
Party pleading a non-admission may not give or call evidence in relation to a fact not admitted, unless also relates to another part of the party’s pleading: r 165(2)
Costs sanction
Rule 167 - Where an allegation is denied or not admitted that ought to have been admitted costs may be awarded against party so pleading.
4. No Denial or Non-admission
If an allegation of fact made by a party in a pleading is not denied or stated to be not admitted then the general principle is that the allegation is taken to be admitted by that opposite party r. 166.