Rules of Pleading; Striking out (UCPR 149-168-171; FCR) Flashcards
What are the types of pleadings?
Statement of claim.
Defence.
Reply (including any defence to counter-claim).
What is the purpose of pleadings?
To provide each party with adequate notice of the case that will be met at trial; the material facts relied upon for the cause of action.
Chapter 6 UCPR:
Part 2 - Rules of pleadings (r149-156)
Part 3 - Particulars (r157-163)
Part 4 - Progress of pleadings/striking out (r164- 171)
Chapter 6 UCPR:
Part 2 - Rules of pleadings (r149-156)
Part 3 - Particulars (r157-163)
Part 4 - Progress of pleadings/striking out (r164- 171)
How are facts pleaded?
r 149 - All material facts should be pleaded in summary form but not the evidence by which the facts are to be proved. They are facts necessary to disclose a cause of action.
How is law pleaded?
r 150 - Where necessary for sake of clarity and completion, matters of law should be
pleaded or where required as per r 150.
Must not plead a conclusion of law as fact.
What is the function of particulars?
Is to inform the other party of the case they are required to meet and to avoid suprise at trial.
What is required for particulars in pleadings? and how does a party get better particulars?
r 157 - A party must include particulars necessary to define issues for trial and to prevent surprise, enable the other part to plead, and to comply with r 150.
r 161 - A party can apply for further and better particulars if r 447 is satisfied.
How does party answer pleadings?
r 165 - A party in response to pleading can answer it by pleading a denial, non admission, or admission.
What is and how do you plead a denial? (QLD; CTH)
A denial is parties belief that the opposite of an allegation is true.
s 166(3) - You can plead a denial if it is accompanied by a direct explanation for the parties belief it is untrue (Cape York Airlines)
How do you plead an admission? and can they be withdrawn?
r 187 - A party may voluntarily admit any alleged fact in the other parties pleadings.
R 188 - A party with leave of the court or consent of other party withdraw an admission.
How do you plead a non-admission?
A party can plead a non admissions is where after reasonable enquires a party is uncertain about the truth or falsity of an allegation.
r 166 (3) - You can plead a non admission if this is supported with a direct explanation as to why it can not be admitted.
A party has a continuing obligation to carry out enquiries to enable them to plead. Once completed must amended defence for denial or admission…and a plaintiff as the same obligation for a Reply.
What is an implied admission?
r 166(1) - Where an allegation of fact is made by a party and the other party has not pleaded a denial or non admission…the allegation of fact is take to be implied admitted subject to incapacity.
What happens if a denial or non admissions is plead unreasonably?
r 167 -The court may order additional cost caused by the plea
A direct explanation for a non admission or a denial is not an allegation of material fact for r 149 and does not create issues for determination at trial…true of false?
True
When do pleadings close? (QLD)
r 169 - Pleadings close 14 days after defence is served or on service of reply.
