Pleadings - O13

Question 1

What is a pleading?

Answer 1

A document by which the party sets out its statement of claim or its defence (and it shall bear such a description = r13.01(1))

Question 2

What is the purpose of a pleading?

Answer 2

The purpose of a pleading is
- To ensure that the other party knows of the case it has to meet and is not taken by surprise; and
- To define the issues in the case as between the parties and for the court.

Question 3

What should be included in every pleading?

Answer 3

Every pleading shall contain
1. A summary statement of all the material facts the party relies upon, but not the evidence to prove those facts;
2. Where relying on any legislation, the specific provision relied upon;
3. The specific relief or remedy sought.

Question 4

Who signs the pleadings?

Answer 4

• If settled by counsel, counsel signs.
• Otherwise, it shall be signed by the solicitor for the party.

Question 5

How are documents mentioned in a pleading?

Answer 5

If mentioning any document or purport of any conversation, it must be pleaded as briefly as possible, and the precise words of the document/conversation must not be pleaded unless the words are material (r 13.03). e.g. precise words will be material in defamation case.

Question 6

What matters should be raised in a pleading?

Answer 6

A party may plead any fact or matter which has arisen at any time, whether before or since the commencement of the proceeding (r 13.08).

Parties don’t need to plead any fact if it is presumed by law to be true or the burden of disproving it lies on the opposite party unless the other party has specifically denied it in that party’s pleading (r 13.04).

A condition precedent that is necessary for the claim or defence, shall be is taken to be performed/ to have occurred for the purpose of the pleading (r 13.05)
Where a party alleges that a contract or relationship is to be implied from a series of letters/convos/other, it shall be sufficient to allege the contract or relationship as a fact, and to refer generally to the letters/convos/other (r 13.06)

Question 7

What should be included in a pleading subsequent to a SOC?

Answer 7

A party must, in any pleading subsequent to a statement of claim, plead specifically any fact or matter which (r 13.07):
- They allege makes any claim/defence of the opposite party not maintainable; or
- If not pleaded specifically, might take the opposite party by surprise; or
- Raises questions of fact nor arising out of the preceding pleading.

Question 8

What are material facts?

Answer 8

Material facts constitute the basis for a cause of action and are only those facts that are relied upon to establish the elements of the cause of action. Material facts must be pleaded (r13.01).

• Material facts are only those relied on to establish the essential elements of the cause of action

Question 9

What are particulars?

Answer 9

Particulars are details that are necessary to allow the other side to understand the allegations and to plead a defence.
Particulars are intended to fill in the picture of the plaintiff’s cause of action (or defendant’s defence). An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried.

Particulars are pleaded where necessary to prevent a party being taken by surprise (r 13.02(2))

Question 10

What are the purposes of particulars in a pleading?

Answer 10

Particulars shall be given if they are necessary to:
* enable the opposite party to plead;
* define the questions for trial; or
* avoid surprise at trial.

Question 11

What should be included in particulars for damages involving bodily injury?

Answer 11

particulars, with dates and amounts, of all earnings lost in consequence of the injury complained of;

    (b)     particulars of any loss of earning capacity resulting from the injury;

    (c)     the date of the party's birth;

    (d)     the name and address of each of the party's employers commencing from the day being 12 months before the party sustained the injury, the time of commencement and the duration of each employment and the total net amount, after deduction of tax, that was earned in each employment.

Question 12

Can evidence be pleaded?

Answer 12

NO

Question 13

When will be pleadings in error?

Answer 13

Pleadings will be in error where they:
 Are “embarrassing” (do not allow the other party to know what case it has to meet);
 do not set out the material facts on which the party relies, as required by r 13.02;
 state conclusions of law, unsupported by material facts;
 fail to give particulars as required by r 13.10;
 Allegations/Claims made may not be inconsistent with any earlier allegation, unless they are pleaded in the alternative (r 13.09).

Question 14

What is the general rule re admission of fact in pleadings?

Answer 14

Every allegation of fact in a pleading shall be taken to be admitted unless it is denied or is stated to be not admitted in the pleading of the opposite party (r 13.12)

Question 15

How an alternative fact is proved in a pleading?

Answer 15

If a party intends to prove an alternative fact to the fact that they have denied /not admitted then they must plead those facts and not merely deny/not admit (r 13.12(2))

Question 16

What is a set off?

Answer 16

Where a defendant has a claim against a plaintiff for the recovery of debt/damages, the claim, known as a ‘set off’ may be relied upon as a defence to the whole or part of a claim made by the plaintiff for the recovery of a debt or damages, and may be included in what’s called a ‘defence and set off’ against the plaintiff’s claim (r 13.14).