4. Pleadings Flashcards
Definition of pleading?
A statement of all the material facts the parties intend to allege at the trial and defining issues in dispute.
Role of pleadings?
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
5 Basic principle of pleadings?
- the facts of the claim or defence have to be pleaded;
- those facts have to be material;
- the evidence by which the facts are to be proved must not be pleaded;
- conclusions of law must not be asserted as material facts; and
- the pleading must be in summary form.
Facts in pleadings?
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.
What is Statement of Claim?
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).
What is cause of action?
Is the combination of the facts which are material to be established for the P to succeed: Cooke
What is Defence
(includes set-ff or counter-claim)?
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).
- Facts admitted cease to be an issue in dispute, and evidence going only to those facts are strictly inadmissible based on irrelevance.
- 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
- 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.
What is Reply
(including any Defence to counter-claim)?
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.
- 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
- A reply to a defence to Counter-Claim performs the same function as the P’s reply to defence.
What is purpose of pleadings?
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.
What must a pleading do?
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;
Consequences of not pleading issues?
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
What facts should be pleaded?
**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
Can you plead a point of law?
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.
Particulars?
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
Consequence if pleadings are evasive or ambigous?
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
Binding effect of pleadings?
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.
When pleadings necessary QLD?
When proceedings are started by claim, for applications only if ordered by the crt: r145 UCPR
Timing of pleadings?
NOD and defence: 28 days after: r137 UCPR
Reply/answer to counterclaim: 14 days after: r164 UCPR
Formal requirements of pleadings QLD?
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
Formal requirements of pleadings FCT?
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.
Matters to be specifically pleaded (QLD)?
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.
Matters to be specifically pleaded Cth?
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
- Fraud, misrepresentation, etc: r 16.42
- Knowledge and other conditions of mind: r16.43 FCR
- 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.
- 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.
What are the rules requiring particulars?
r157 UCPR;
r16.41 FCR
What is the purpose of particulars?
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.
