4. Pleadings

Question 1

Definition of pleading?

Answer 1

A statement of all the material facts the parties intend to allege at the trial and defining issues in dispute.

Question 2

Role of pleadings?

Answer 2

Pleadings influence the entire proceeding and when done properly, promote efficient case management providing a basis for the parties to determine which issues are genuinely in dispute, identifying where the burden of proof lays, determining the range of relevant evidence and scope of discovery required, ensuring procedural justice, they;
1. **act as a guide to disclosure **(what should be provided to the other side)
2. serve as a record of what matters have been pursued (action and issue estoppel)
3. may facilitate settlement (identify strengths and weaknesses); and
4. may assist in determining the appropriate manner of trial

Question 3

5 Basic principle of pleadings?

Answer 3

1. the facts of the claim or defence have to be pleaded;
2. those facts have to be material;
3. the evidence by which the facts are to be proved must not be pleaded;
4. conclusions of law must not be asserted as material facts; and
5. the pleading must be in summary form.

Question 4

Facts in pleadings?

Answer 4

Are mere assertions that have to be proved by the evidence. Except where the rules provide, alleging a fact in a pleading is not a statement that the allegation is true.

BUT if the opposite party admits a fact in a pleading, that fact is taken as established for the purpose of the proceedings and there is no need to for evidence to prove it.

Question 5

What is Statement of Claim?

Answer 5

Document in which the Plaintiff alleges all the material facts said to show they have a cause of action against the Defendant and are entitled to relief sought. (N.B. for UCPR r149 includes both the claim and SOC).

Question 6

What is cause of action?

Answer 6

Is the combination of the facts which are material to be established for the P to succeed: Cooke

Question 7

What is Defence
(includes set-ff or counter-claim)?

Answer 7

Document in which D answers specifically each allegation in the P’s SOC (by admitting, denying, non-admission, pleading additional fact, alleging set-off or counterclaim).

1. Facts admitted cease to be an issue in dispute, and evidence going only to those facts are strictly inadmissible based on irrelevance.
2. Strictly, a set off is a defence and does not permit the crt to give judgment for the Defendant for an amount exceeding the Plaintiff’s claim. But in QLD, the crt may give judgment for any amount by which a set-off exceeds a claim: r173 UCPR
3. A counter-claim operates as an independent proceeding by the Defendant against the Plaintiff, prosecuted concurrently. The same rules applicable to SOC apply to counter-claims.

Question 7

What is Reply
(including any Defence to counter-claim)?

Answer 7

Document in which the P raises facts and matters in answer to the allegations in the defence and respond to any positive pleadings in the defence (by admission or denial). Including any defence to counter-claim, and reply to defence to counter-claim.

1. A reply is to raise facts and matters in answer to the allegations in the defence. There is no need for a reply merely to deny allegations in the defence (if no additional facts are raised).

2.Cannot include allegations in reply that are inconsistent with SOC: McAdams

3. A reply to a defence to Counter-Claim performs the same function as the P’s reply to defence.

Question 8

What is purpose of pleadings?

Answer 8

To provide each party with adequate notice of the case that will have to be met at trial: Banque Commercial

Purpose of pleadings in a proceeding is principally to:
(a) define the issues in dispute between the parties; and
(b) place each party in a position of knowing the other party’s case at trial.

Question 9

What must a pleading do?

Answer 9

MUST:
(a) disclose a cause of action/defence known to law;
(b) set out all the material facts relied upon (but not evidence, or generally, conclusions of law); and
(c) be in summary form and be as brief as the case permits;

Question 10

Consequences of not pleading issues?

Answer 10

Unless leave is granted, parties are not allowed to move outside the issues revealed by the pleadings. Issues that are not raised by the pleadings are not before the crt. Banque Commercial

BUT if parties conduct trial on issues outside pleadings, if no prejudice crt can direct pleadings be amended to conform with issues determined at trial: NSW v Thomas

Question 11

What facts should be pleaded?

Answer 11

**Material facts are those necessary to disclose a cause of action or defence **recognised by law: NRMA Insurance

**Every material fact must be pleaded, and a failure to plead a material fact cannot be supplemented by particulars **(cf merely an insufficient particularised pleading of a material fact): TPC v David Jones

Generally, facts which are merely relevant but not material should not be pleaded: Davy v Garrett

Question 12

Can you plead a point of law?

Answer 12

Where necessary for the sake of clarity and completion, matters of law should be pleaded.

BUT Points of law must be clearly and separately pleaded and not interwoven with pleadings of fact.

Question 13

Particulars?

Answer 13

Degree of particularity required depends on common sense and circumstance of each case: American Flange

The provision of particulars must be done in the context of case management principles (e.g. the provision of elaborate particulars questionable where parties already directed to file witness statements etc): Power Infrastructure Pty Ltd v Downer EDI Engineering
* The state of knowledge of party seeking particulars has no bearing on the opposite party’s responsibility to supply them.
* Each party is entitled to have the opposite party’s version of the facts: Whelan v John Fairfax & Sons
* Applications for particulars may be refused if amount to a request for evidence: Re Dependable Upholstery

Question 14

Consequence if pleadings are evasive or ambigous?

Answer 14

If a pleading is evasive or ambiguous an admission is implied: r166 UCPR; r16.07 FCR

Should expressly plead any new matters of law or fact: Rupcic

If simply plead a bare denial, likely be prevented from adducing evidence at trial beyond merely contradicting the Ps evidence: Davie v New Merton Board Mills Ltd

If denial amounts to a positive assertion, particulars of the denial must be given: Chapple v Electrical Trade Union

Inadequate denials/non-admissions will not operate as an admission where the other party’s evidence on its own is incapable of supporting the allegation: Barker v Linklater

Question 15

Binding effect of pleadings?

Answer 15

Generally, parties not allowed to move outside issue disclosed in pleadings without leave of the Crt: Banque Commercial

In giving judgment, the crt is not bound to accept the cause of action on which the P has pleaded the claim, and is entitled to apply the law to the facts as proved (even if that means giving judgment on a somewhat different ground): Konskier v B Goodman

BUT note r16.02 (4) FCR now provides that a party is not entitled to seek any additional relief to that claimed in OA.

Question 16

When pleadings necessary QLD?

Answer 16

When proceedings are started by claim, for applications only if ordered by the crt: r145 UCPR

Question 17

Timing of pleadings?

Answer 17

NOD and defence: 28 days after: r137 UCPR

Reply/answer to counterclaim: 14 days after: r164 UCPR

Question 18

Formal requirements of pleadings QLD?

Answer 18

Must comply with r146 [e.g. approved form, numbered para, signed, dated)

Each paragraph contain separate allegation’: r146

Must: r149(1):
(a) be as brief as case permits;
(b) contain **all material facts **relied upon, but **not the evidence **by which the facts are to be proved;
(c) matters that will otherwise take other pty by surprise;
(d) subject to r156 (crt can grant general relief whether claimed or not), any relief;
(e) if defence under an **Act is relied upon, id **the specific provision under the Act; and

May plead/raise a conclusion/point of law if also plead material facts in support: r149(2)

Not required to plead facts the law presumed in a pty’s favour, or burden of proof does not lie with the pty: r151 UCPR but doesn’t apply if necessary to plead fact to comply with r149 or to meet denial.

Can plead the effect of spoken words and documents where precise words not material: **r152 **

**Inconsistent facts **may be pleaded, provided they are done as alternatives: r154 UCPR

MUST state the nature and amount of damages claimed, if general include particulars of the loss/damage, circumstances in which loss suffered and basis for amount claimed: r155 UCPR

Question 19

Formal requirements of pleadings FCT?

Answer 19

Must comply with rr16.01-16.02 FCR
Rule 16.01 FCR: must include name of persons who prepared it;

Rule 16.02(1) FCR: MUST:
(a) number para;
(b) each para deal with separate matter;
(c) be as brief as case permits;
(d) id (all of) issues want crt to resolve;
(e) state all material facts (not evidence) necessary constitute a COA & relief sought;
(f) state** relief** claimed (per OA/xclaim).

Rule 16.02 (2) MUST NOT:
(a) contain scandalous material; or
(b) contain frivolous or vexatious material; or
(c) be evasive or ambiguous; or
(d) likely cause prejudice /embarrassment or delay; or
(e) fail to disclose a reasonable COA or defence;
(f) otherwise be an abuse of process.

NOTE: r16.02(2) list of what pleadings should not do, same as r 16.21(1) which sets out grounds on which a pty may apply to the Crt for an order that a pleading be struck out.

MUST plead fact if necessary to meet express denial or failure to do so cld take other pty by surprise, but no need to plead a fact if the burden of proving the fact lies on other party: r16.03 FCR

Can plead effect of spoken words or documents where precise words not material: r16.04 FCR

Inconsistent facts may only be pleaded if they are done as alternatives (but not if it is known that one alternative is false): **r16.06 **

A pleading must state the provisions of any statute relied upon. A pleading must state the specific relief sought or claimed. A party may plead any point of law, although parties are not generally obliged to do so.

Rule 16.02(5) allows a pty to plead a fact or matter that has occurred or arisen since the commencement of proceedings, but not a new COA.

Pleadings must disclose a reasonable COA or D. To disclose a reasonable COA the pleadings must contain all relevant facts to support any allegations made and plead a causal connection between the facts and legal ramifications of the facts. There is no reasonable COA if the case is so untenable that it cannot possibly succeed.

Question 20

Matters to be specifically pleaded (QLD)?

Answer 20

r150 UCPR, includes:
1. Any statutory provision relied upon;
2. Damages, see also: rr155 (Damages), 158 (Particulars of damages)
3. Knowledge, any other state of mind;
4. Def under Limitations of Actions Act;
5. Interest;
6. Breach of contract or trust;
7. Negligence or contributory negligence

Inferences: any fact from which any of the matters is claimed to be an inference must be specifically pleaded: r150(2) UCPR.

Defence and replies: must specifically plead a matter that makes a claim/defence not maintainable, shows a transaction is void or voidable, might take the other pty by surprise if not specifically pleaded, or relies on new ques of fact: r150(4) UCPR

BUT these are only examples, the guiding principle is that all facts necessary to avoid surprise must be pleaded.

Question 21

Matters to be specifically pleaded Cth?

Answer 21

A fact must be pleaded if necessary to meet an express denial pleaded by another party, or failure to plead may take another pty by surprise: r 16.03 FCR

1. Fraud, misrepresentation, etc: r 16.42
2. Knowledge and other conditions of mind: r16.43 FCR
3. Damages and exemplary damages: r16.44 FCR: must state in a pleading the amount of the money paid or liable to be paid and if exemplary damages, the pleading must also state particulars of the facts on which the claim is based.
4. Defences and Replies: MUST specifically plead matters of fact or law that raise a new issue, make the other party’s claim or defence not maintainable, or that may take the other party by surprise: r16.08 FCR, it requires each pty to define its case with sufficient clarity that the opposing pty understands and is able to meet the case against them.

Question 22

What are the rules requiring particulars?

Answer 22

r157 UCPR;

r16.41 FCR

Question 23

What is the purpose of particulars?

Answer 23

To add context and depth to the pleaded material facts. Particulars are not evidence, but clarification.

Rule 16.42 FCR: object of particulars is to limit the generality of the pleadings by:
(a) informing an opposing party of case to meet; and
(b) preventing an opposing party being taken by surprise; and
(c) enabling the opposing party to collect evidence; and,
(d) limit generality of pleadings and restrict scope of evidence;
(e) define and limit the issues; and
(f) limit discovery by defining the questions and re which discovery required.

The function of particulars is not to fill in gaps in pleadings or to cure defects in a SOC or defence by including statements of material fact.

Question 24

Requirements re particulars UCPR re damages/liability?

Answer 24

If damages claimed MUST set out the nature and am,ount of the damages: r155 UCPR.

Court can grant general relief or other than as specified in the pleadings: r156

MUST particularise payment or liability to pay money, and all matters relied upon to support a claim of exemplary/aggravated damages: r158 UCPR

A **claim for interest **(where not personal injury or death) MUST be sufficiently particularised to permit pty responding to make a reasonable determination of the amount being claimed: r159 UCPR. Claims for damages which are not particularised may now be struck out as non-compliant with r159: r162 UCPR

Question 25

If insufficient particulars - QLD?

Answer 25

Particulars MUST be stated in the pleading or in a separate document mentioned in, and filed and served with, the pleading: r160 UCPR (unless rr157/159 do not apply, or is further particulars, then by corro, which will also need to be filed)

Pty can apply to the crt for an order for further and better particulars: r161 UCPR;

BUT before making such an application pty must write to other pty setting out complaint and relief sought and time within which pty is to respond: r444 UCPR; and A can only apply for further and better particulars after has received a response or time has lapsed: r447 UCPR.

BUT crt has a discretion to still hear an application despite non-compliance. Application does not extend time for pleading: r161(3) UCPR

Question 26

What can Crt do re particulars - if breach (QLD)?

Answer 26

rr161-163 UCPR

Crt may strike out particulars of a pleading on the same basis that it may strike out a pleading (see r171 UCPR), if:
1. tendency to prejudice/delay fair trial;
2. unnecessary or scandalous;
3. frivolous or vexatious; or
4. otherwise an abuse of the process: r162 UCPR

If a pty does not comply with an order for further and better particulars under r161, then crt may make an order it considers appropriate, including judgment: r163.

**Rule 171 **allows crt to strike out whole pleading, with the effect of removing a party’s entire claim or defence, such that judgment may then be given.

Rule 162, dealing with particulars rather than pleadings, does not provide the crt with same power. BUT where appropriate, r163 gives crt the power to enter judgment against a party that fails to comply with an order to provide particulars.

Question 27

Difference between pleadings and particulars?

Answer 27

Distinction b/w pleadings & particulars is:
1. a PLEADING must contain only a statement in summary form of the material facts, but not the evidence by which those facts are to be proved; while
2. the primary function of PARTICULARS is to ensure effect given to overriding principle that the litigation between parties should be conducted fairly, openly, and without surprises and incidentally to reduce costs.

The degree of particularity required depends upon the circumstances of the case.

Question 28

If particulars inadequate FCT?

Answer 28

Rule 16.45 FCR deals with applications for further and better particulars. It allows for such an application, but only if the pleading in relation to which particulars are sought does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of his or her case.

An application may be made for further and better particulars but only where the particulars in the pleading are inadequate and the party seeking the order could not conduct his or her case without further particulars.

rr16.42/16.43 FCR require a party, in pleadings, to give particulars, amongst other things, of fraud/collusion/unlawful conduct (r16.42) and of another party’s condition of mind (r16.43).

If a pty pleads that another pty ought to have known something, the pty must give particulars of the facts and circumstances from which the other pty ought to have acquired the knowledge (constructive knowledge).

BUT these rules do not limit the generality of r16.4(1): r16.41(2) FCR

Question 29

What can crt do if particulars insufficient FCT?

Answer 29

If the particulars are inadequate and pty could not conduct their case w/o further particulars, can seek order to file: r16.45
(a) particulars of claim, defence or other matter; or
(b) **st’ment nature of case **relied on; or
(c) particulars of damages claimed.

The power to order particulars is discretionary, the object being to ensure the efficient process of the Court.

The order for particulars shld limit time within which they are to be served and, if necessary, the time for pleading after their supply. The order may also impose terms on the party ordered to serve the particulars in the event of failing to do so.

Question 30

Answering pleadings UCPR?

Answer 30

May plead denial, non- admission, admission, or another matter: r165 UCPR

Pty who pleads a non-admission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the prty’s pleading: **r165(2) **UCPR (c/f with a pty pleading a denial = may lead evidence).

The requirement to plead is discretionary; BUT

Facts not specifically denied or stated to not be admitted are subject of implied admissions: r166 UCPR, unless it’s an allegation of fact made in the last pleading before pleadings close – those subject to non-admission (but pty can mke an admission at any stage): r168 UCPR (pleadings **closed **once reply/answer to counterclaim server or 14 days after defence: r169 UCPR)

Pty may plead a denial only if believes allegation to be untrue: Cape York Airlines v QBE Insurance.

Pty can only plead a non-admission if has made reasonable inquiries to find out if true and remains uncertain as to truth or not. Remain under a continuing duty to mke further inquiries, and if appropriate, amend pleadings: r166 UCPR;

Pty’s denial or non-admission must be accompanied by a direct explanation for pty’s belief that allegation is untrue/cannot be admitted (depending on if denial or non-admission): r 166 UCPR. Otherwise will be implied admission r166 UCPR

Question 31

Answering pleadings FCR?

Answer 31

r16.07 FCR

MUST specifically **admit or deny **every allegation of fact in a pleading: **r16.07(1) **

Party may state they do not know and therefore cannot admit, a fact – it is taken to be denial: r16.07(3)-(4) FCR

Any allegation not specifically denied are taken to be admitted: r16.07(2) FCR

The purpose of admission and denial is to identify the matters in issue so that they are appropriately defined for resolution.

Where no defence is filed in accordance with r16.32 (provides must file a D within 28 days after service of SOC) the allegations are to be treated as admitted.

The effect of admissions made under this rule is to narrow the issues in dispute: this can have the effect of restricting the evidence to be tendered and can prevent evidence being called to the contrary of the admission.

A deemed admission has the same effect as an express admission, BUT only allegations of fact can be subject to a deemed admission, does not deem admission to entitlement of relief sought: ACC v Petroleum

Question 32

Can admissions be withdrawn?

Answer 32

QLD: may only be withdrawn with leave or by consent: r188 UCPR

FCT: may only be withdrawn with leave or by consent: r26.11 FCR

Leave may be granted to withdraw an admission in pleadings in accordance with the rules for amendment of pleadings, namely, r 16.53.

1. procedure for withdrawing admissions is by way of an application under r 16.53 to amend pleading. The calls for the exercise of discretion per ss 37M and 37N FCA.
2. Crt will not lightly allow withdrawal of an admission on which the other party has acted to their detriment or would be otherwise prejudiced by the withdrawal: will take into account:
   (a) the importance of the admission;
   (b) the circumstances in which the admission was made;
   (c) whether the admission was made deliberately or inadvertently;
   (d) the reason for the application to withdraw;
   (e) any detriment or prejudice that a withdrawal might cause to the other party;
   (f) the stage that the proceeding has reached; and
   (g) whether the admission is contrary to the facts.

Question 33

Close of pleadings QLD?

Answer 33

Timing: on service of reply or response to counter-claim, or 14 days after service of defence: r169 UCPR

Effect: every allegation made in last pleading deemed subject to non-admission and r165 will apply (cannot lead evidence): r168 UCPR. If want to raise other matters, must amend Defence

Question 34

Close of pleading Cth?

Answer 34

Timing: end of latest times fixed for the filing of Defence, Reply or other pleading between the parties: r16.12 FCR, this is so even if a request or order for particulars has not been complied with: r16.12(2) FCR

Effect: if no reply filed, joinder of issues implied in relation to any allegation of fact in Defence (treated as denied): r16.11 FCR

If in a reply, a pty admits, or expressly pleads to an allegation of fact, a **joinder of issue **operates as a denial of any other allegation of fact in the pleading: r16.11(2)

‘joinder of issues’ means that the fact alleged in the pleading is taken to be denied. Joinder of issue only relates to any pleading after a defence.

Close of pleadings is relevant to determining whether a party can amend a pleading without leave: r 16.51(1) FCR.

Question 35

Can amend pleading (QLD)?

Answer 35

rr375, 376, 378, 379, 380 snd 381 UCPR

At any stage of the proceedings crt may allow or direct amendments to a claim, a pleading, an application, or any other document in the proceedings, including if the amendment would result in a COA arising after proceedings have started: r375, subject to r376:

Rule 376 provides broad power to the crt to permit amendment, after a limitation period has expired, provided the limitation period was current at the time the proceedings were commenced. The crt may grant leave to permit amendments to:
1. correct a party’s name (even if it may effectively add a new party, but only if crt considers appropriate, and was genuine mistake and not misleading or cause doubt of person intending to sue): r376(2);
2. change the capacity in which a party sues: r376(3); or
3. add a new cause of action (but only if crt considers is appropriate and new COA arises out of the same/substantially same facts as already claimed): r376(4)

May amend pleadings (as often as necessary) without leave any time before request for trial date: r378 UCPR.

Afterwards leave required: r380 UCPR

But another party may within 8 days of an amendment under r378, apply to the crt to disallow all or parts of the amendment, and the crt can make any order it considers appropriate: r379 UCPR

Where a party has failed to comply with the rules in drawing its OP and the OP is therefore irregular (r371), the court may exercise its discretion under r375 to permit an amendment where the proposed amendment is likely to cure that defect: Advanced Air Conditioning Pty Ltd v Katim Pty Ltd

If party does not amend the document in accordance with an order giving leave within 14 days of the order, the order giving leave will cease to have effect: **r381 **UCPR

Question 36

Can amend pleading (FCT)?

Answer 36

Leave to amend **OA **required: r8.21 FCR

Party may amend a pleading x1, or further with consent, any time before the pleadings close, without leave of the crt: r16.51 (1) FCR,

BUT may not amend a pleading if the pleading has previously been amended in with leave of the crt.

The object of this rule is to ensure that all necessary amendments may be made to enable the real ques b/w the parties to be decided and to avoid multiplicity of proceedings: Aon Risk.

In addition, a pty is entitled to file an amended D or reply in response to amendment of the opposing party’s pleading: rr16.55 (for Def) 16.56 (reply) FCR (this is in addition to the right to amend pleadings under r16.51 FCR).

Implied joinder of issues after amendment if pty does not amend defence or reply in answer to amended pleading: r16.57 FCR

Leave of the Court is otherwise required to amend a pleading: r16.53 FCR. A party may apply under r16.53 (1) for leave to amend a pleading to add or substitute a new claim for relief, or a new foundation in law for a claim for relief that arises out of the same facts or substantially the same facts as those already, even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. BUT not where arises out of facts/matters that occurred since start of proceeding if application after end of period of limitation.

The Court has a wide discretion to grant leave to amend, but it must be exercised subject to the overarching purpose of s37M FCA. The general approach is that leave to amend should be granted unless the proposed amendment is futile or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs.

The purpose is to ensure that the real ques in the proceedings are properly agitated and encourages the avoidance of a multiplicity of proceedings: Aon Risk.

Case management principles, including the avoidance of wasted costs and delay, may be considered on an application for leave to amend (Aon Risk/Cement). Applications for leave to amend should generally be made at the earliest available opportunity, however amendment may be permitted at any stage in the proceedings.

Party seeking leave to amend bears the onus of satisfying the Court that grounds exist for exercising the discretion in his or her favour: Dye v Commonwealth Securities Ltd;

**Relevant matters **that might be taken into account include: Aon Risk;
1. the importance of the amendment to the party applying for it;
2. the stage of the litigation at which leave to amend is sought;
3. the explanation for any delay in applying for that leave; and
4. the **potential for loss of public confidence in the legal system **which can arise where a crt is seen to accede to applications made without adequate explanation or justification.

The addition of parties to an existing proceeding is effected by an order of the Ctt: r 9.05, leave is required file an amended pleading that adds another pty to existing proceedings, notwithstanding r 16.51(1).

if a party amends pleading without leave of the Crt in accordance with r 16.51, an opposing pty may apply to the Crt for an order disallowing the amendment: r16.52P

Question 37

Summary of the applications re pleadings?

Answer 37

QLD:
Further and better particulars: rr161, 443-444 UCPR
Strike out of particulars: r162 UCPR
Strike out of pleadings: r171 UCPR
Amending pleadings: rr375,376
Default judgment: r280 UCPR

FCT:
Further and better particulars: r16.45 FCR
Strike out of pleadings: r16.21 FCR
Amend pleadings: rr16.52-16.53 FCR
Default judgment: rr5.22, 5.23 FCR