Topic 4: Pleadings Flashcards
Topic 4: Pleadings
Topic 4: Pleadings
Purpose of pleadings
Define issues to be tried
Inform parties to the case they have to meet so they can respond
Provide a record of matter to be determined
Statement in pleadings
- Must be brief
- contain a statement of all material facts on which the party relies on but not evidence
- state any matter that if not stated will take the other party by surprise
- relief party claims
- if a claim or defence under the act is relied on
- party may plead a conclusion of law or raise a point if law if the party also pleads material facts in support of that conclusion
Matters to be specifically pleaded
- Must be specifically pleaded in statement of claim to reply on
Basic rules and structure
- outline who parties are, as the judge has no idea about the matter
- give all relevant information
- show cause of actions for every pft and liability for every dft
Statement of Claim
A statement of claim includes particulars of the pleading necessary to define the issues for and prevent surprise at trial, enable the opposite party to plead; and support a matter specifically pleaded.
Statement of Claim: Particulars of Damages
If the party claims damages including money, the pleading must contain particulars of payment or liability.
If the party claims exemplary or aggravated damages, their pleading must contain particulars of all matters relied on it support of the claim.
Interest
Three parts to claim interest for:
- From cause of action to date claim filed
- From the file of claim date to judgement
- From judgement date to when physical payment is made.
Doesn’t apply to damages or personal injury
Party must allege particulars of the amount interest is claimed, interest rate claimed, days from which interest is claimed and method of calculation.
Interest: Civil Proceedings
s58 the court may order an interest they see appropriate between the date of the cause of action and the date of judgement.
s59 interest is payable from date of a money order to the monetary order debt unless the court orders otherwise.
How to plead causes of action: Contract
- Set out terms of contract, date, parties, verbal/written
- Details of performance/what has and has not been done
- Details of breach
- Consequences of breach e.g. loss & damage
- The loss and how it was calculated
How to plead causes of action: Negligence
- Materials of fact
- Nature of the duty of care owed
- By who and to who
- Nature of the breach
- Consequence of the breach
- Calculation of damages
How to plead causes of action: Defamation
- Relationship of parties
- Identify material defamatory
- How it was published
- Loss & damage suffered
- Calculation of loss
Alternative Claims
A party may make inconsistent allegations or claims ONLY if they are pleaded as an alternative.
However, they cannot make an allegation or new claim that is inconsistent with an allegation or claim made in another pleading without amending the pleading.
Trial by jury
Unless excluded by an act, the Pft in the statement of claim or the Dft in their defence may elect for trial by jury.
Defence
Once a claim and statement of claim is served, the Dft makes a defence stating their own allegations and counterclaim.
In response to the defence, the Pft makes a reply responding to the fresh allegations and the Dft will respond to that reply.
This continues to narrow down the issues.
Answering pleadings
Unless you dispute an allegation, it will be taken to be admitted.
There are three answers: yes, no and I don’t know.
If you say no or i don’t know to it, you must provide a reason as to why, or it will be taken to be an admission.
Unreasonably denials and non-admission
Where the court finds an allegation of fact denied or not admitted when it should have been admitted, the court may order the party who denied to pay additional costs caused by it.
An admission is only withdrawn with the leave of the court.
Notice to admit facts or documents
The first party may serve a notice to admit facts or documents to the other party. If they don’t respond within 14 days, it will be taken to be admitted.
Set off
The Dft can rely on set of as a defence to all or part of the claim whether or not included in the counterclaim.
Set off may be treated as a counterclaim where the amount is more than the amount claimed and may order the amount of difference.
Particulars
An application sent for further and better particulars where the other side has no specified particular information required through a letter or court document advising the other side in respect to the statement of claim that you need more detail.
Step 1: Write to the other side & request
Step 2: The other lawyer may hand over what is asked or not.
Where there is no response, send a letter referring to the complaint, relevant facts, sought relief and time for reply.
If there is still no response, apply to the court.
Striking out particulars
The court may strike out a particular if:
- has tendency to prejudice or delay
- unnecessary or scandalous
- frivolous or vexatious
- abuse of court process
Striking out Pleadings
The court may strike out a pleading where
- discloses no reasonable cause of action
- tendency to prejudice or delay
- unnecessary or scandalous
- frivolous or vexatious
- abuse of court process
Default Judgement
Default by Dft where they have not filed NOTD within 28 days.
Court registrar not required to consider the pft’s merits
Pft has to prove service
Default for unliquidated damages must be determined by court.
