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Lecture 5

WEEK 5 & 6 - Pleadings

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Queensland University of Technology

NOTES CONTENTS Page Section 1 Purpose 3 Commencing Proceedings 5 Format of Pleadings 6 Formal Requirements 7 Matters to be Specifically Pleaded 8 Particulars 9 Statement of Claim 10 Notice of Intention to Defend 13 Defence 14 Counter-Claim 15 Reply 15 Answer 16 Challenging Pleadings 16 Challenging Particulars 16 Notice to admit facts or documents Questions dealing with problems in a pleading 1. Check jurisdiction Week 2 Jurisdiction 2. Check parties and how they are named Week 3 Joinder (including business names) 3. Check Registry & File Number & any miscellaneous rules (on notes below) o Commencing Proceedings 4. Check dates (of filing) Listed under each type of pleading (on notes below) 5. Check basic set out of the Form: Compare with printouts of forms 6. Check set out of the pleadings (on notes below) o Format of Pleadings o Formal Requirements o Matters to be specifically pleaded o Particulars 7. Check specific requirements of type of pleading: Listed under each type of pleading (on notes below) 1 PLEADINGS Pleadings are documents which the parties to litigate exchange with each other to establish the material facts that they believe support their case. PURPOSE 1. Give notice to defendant: that case is going to trial thus assisting pre-trial fairness: Banque v Akhil 2. Act as a guide to disclosure: what documents and other evidence needs to be provided for the other side 3. Serve as a record: of what materials have been pursued with respect to a particular dispute, so that parties don’t end up re-litigating 4. May facilitate settlement: once the parties are aware of the strength or weakness of the other side’s case A civil court can only decide a matter on grounds other than those disclosed in the pleadings, when parties agree and the court thinks it’s appropriate to do justice between them: Banque Commerciale v Akhil Holdings (Maj. Mason CJ, Gaudron, Brennan & Toohey) (a) These principles are enshrined through the operation of r157. Banque Commerciale v Akhil Holdings Facts: plaintiff sued the def. bank and two other parties in the NSWSC; Bank alleged the other def. had caused the bank to transfer from its ownership certain shares in a mining company which were held by it in trust for the plaintiff. Each def. filed a defence pleading that the action was statute barred; P did not reply to the bank’s defence, but in its reply to the defences of the other parties, it alleged that is action was one in respect of a fraudulent breach of trust by the bank. copy of that reply was served on the bank’s solicitors; the bank did not appear at trial. Trial judge gave judgment for D. On Appeal, Court found that the bank was a party to the fraudulent breach (a finding which was not available based on the P’s reply to the Bank’s defence). Bank appealed to High Court. Held: (Mason, Gaudron, Brennan & Toohey) Appeal allowed. A case is only committed to be decided upon a basis that’s different to the pleadings if the parties agree to what has been alleged and Courts permit that departure. It would be different if the Bank had been present at the hearing and acquiesced to the course adopted but they were not present. Acquiescence cannot be inferred by the Bank’s failure to participate Therefore the P was only entitled to such relief as was available on the pleadings. 2 COMMENCING PROCEEDINGS Which Registry? IF Supreme Court: Supreme Court proceedings may be commenced in any central registry: r33 IF Other Court: The appropriate district is determined according to: r35 • The residence or place of business of the defendants/respondents; • Any district to which the defendants/respondents have agreed in writing; • The district in which the defendant/respondent has undertaken in writing to pay a debt or other amount; or • The district in which all or part of the claim or cause of action arose. File Number: r964 (3) Starts with: S, D or M (4) Must appear on the top right corner (5) Must be written in unless pleading is starting proceedings Registry puts in file number, not you. IF originating application/claim: • Contact details and address for service: r17 • Signature by applicant or solicitor: r19 • Copy for court file: r20 • IF claim: r22 • IF NOITD: r23 • IF claim not served within 12 months of date issued: Then need to satisfy the registrar that reasonable efforts have been made to serve the defendant or provide ‘another good reason’: r24(2) • Paper size colour and type: r961 A document must: (a) be on international sheet size A4 paper that – (i) is white or cream in colour; (ii) is of good and durable quality; and (iii) is free from discolouration or blemishes; (b) have all its pages and all attachments securely bound together in a way satisfactory to the registrar; (c) have clear margins no smaller than 10mm on the top, bottom and right sides; (d) have a margin on the left side of the document wide enough for the seal of court to be stamped on it’; (e) be printed – (i) with type no smaller than 1.8mm (10 point); and (ii) in a way that is permanent and can be photocopied to produce a copy satisfactory to the registrar. The uniform rules and forms are in plain English. The rules also specifically permit dates, amounts and numbers to be stated in figures: r962. There is also a specific rule that empowers the court to give leave for a fax or other copy document to be used in proceedings: r965. • What form of Commencing Proceedings? There are two main ways of commencing proceedings: 1. Originating Application 3 o Compulsory: An application is compulsory where the Act or UCPR require or permit the person to apply for relief, AND do not specify type of originating process; OR require or permit something other than claim or application: r10. o Optional: An application is permitted where the only or main issue in a proceeding is an issue of law and a substantial dispute of fact is unlikely; OR there is no opposing party or no intention to serve originating process, OR insufficient time to prepare a claim due to the urgent nature of the relief sought: r11. 2. Claim A proceeding must be started by claim unless the rules permit OR require it to be commenced by application: r9. The claim is for factual disputes that are intended to go to trial. Oral Application Proceedings may be sought by oral application where urgent relief is required, AND there is an undertaking by counsel or solicitor to file application, AND court considers it appropriate. Which Forms? Need to use approved form: • Claims (Form 2): r22(1) • Originating Applications (Form 5) must be in the approved form: r26(1) • Application in the Proceeding: interlocutory matters (Form 9) e.g. if insufficient disclosure, order to inspect property etc. If proceedings are started in the wrong form the court may order that they continue as if they had been commenced properly: r13 (stared claim but should have been application); r14 (started application but should have been claim). 4 FORMAT OF PLEADING: A pleading must: r146(1) (a) state the number of the proceeding; and (b) state the description of the pleading; and (c) be filed and state the date on which it is filed; and (d) be signed by the solicitor for the party filing it; or if the party appears/defends in person, the party; and (e) be consecutively numbered on each page; and (f) be divided into consecutively numbered paragraphs and, if necessary subparagraphs, each containing, as far as practicable, a separate allegation; and (g) if it is settled by counsel – state the counsel’s name (2) In addition, a pleading (other than a reply) must have on it a notice to the party on whom the pleading is served under r164 informing the party about the time for serving pleadings in response under rule 164. IF fail to comply: Failure to comply does not render a proceeding, document, step taken or order a nullity. However may apply for an order pursuant to r372 to: r371 (a) set aside all/part of proceeding; (b) set aside a step taken or order made; (c) declare a document/step taken to be ineffectual; (d) declare a document/step taken to be effectual; (e) make another order that could be made under these rules; (f) make such orders that court considers appropriate. 5 FORMAL REQUIREMENTS A pleading must: r149(1) (a) be as brief as the nature of the case permits; and o The extreme repetition of passages in the defense was held to prejudice the fair trail of the proceeding: Williams J at [97] Robinson v Laws (endless transcript of radio broadcast; defense struck out) o HOWEVER it is accepted that some cases result in a SOC that is long and involved: Midland Milk Pty Ltd (b) contain a statement of all the material facts, on which the party relies, but not the evidence by which the facts are proved; and o Each fact which is necessary to constitute the claim of defence is material: Phillips v Phillips Facts: The claim was worded extremely generally and didn’t identify the property or material facts (no words of justification, just alleged the existence of evidence proving such): Bramwell LJ Phillips v Phillips (inheritance of a castle; didn’t state what facts supported the claim – just fishing for the other side’s position) o 1. Material means material to the claim (i.e. the cause/s of action) 2. Does not exclude the allegation of legal categories (i.e. duty of care/trust/fiduciary) Kirby v Sanderson Motors Hodgson JA, Mason P & Hanley JA agreeing (c) state specifically any matter that if not stated specifically may take another party by surprise; and o 3. General requirements to avoid surprise mean that material facts must be stated in a way that a defendant can understand the materiality of the facts (i.e. how they are material to the case) Kirby v Sanderson Motors Hodgson JA, Mason P & Hanley JA agreeing (d) subject to rule 156, state specifically any relief the party claims; and o MUST state the exact nature and amount of the damages claimed (including the exact circumstances in which the loss/damage incurred): r155 o BUT court can grant relief that isn’t specified in the pleadings: r156 (i.e. circumstances of the claim may vary as the claim evolves) o e.g. Defamation (seek apology, retraction, damages, punitive damages etc.) Eg. In [8] have not specifically stated damages/relief. It is not sufficiently particularized to say ‘overcharge’ instead say charged higher than amount agreed to in corporate menu and the amount of the specific relief claimed for that issue. (e) if a claim or defense under an Act is relied on – identify the specific provision under the Act; Eg. Here there is a statutory cause of action, but not stated. (2) in a pleading, a party may plead a conclusion of law or raise a point of law, if the party also pleads the material facts in support of the conclusion or point. o This is not essential and providing all ‘essential ingredients’ are pleaded and the SOC discloses a cause of action the pleading will be sufficient: Creedon v Measey Investments Facts: The only thing raised to support the conclusion that the 4 defendant was liable was that “he was the owner of the truck” thus that portion was struck out: Creedon v Measey Investments Martin J (plainly what the plaintiff had in mind 6 rd was vicarious liability for the 3 defendant’s driving of the truck BUT this doesn’t overtly disclose a cause of action “any other clause of action against the 4 defendant is fanciful”) Eg. Negligence – need to disclose information relevant to duty, breach, damage such as ‘did not take care in transportation, preparation of food etc. 7 MATTERS TO BE SPECIFICALLY PLEADED Matters which need to be specifically pleaded: r150 However the list is not exhaustive: r150(1) Must plead facts that infer other facts that you have alleged in s150(1): r150(2) (a) breach of contract or trust; o Including information establishing whether there is a contract (b) every type of damage claimed including, but not limited to, special and exemplary damages; o Compliance is mandatory: Meredith v Palmcam (cannot say particulars will be given prior to trial or in r155 statement of loss/damage because each serves different purposes – i.e. obliged to disclose details of SOC but not in statement of loss/damage) o As a minimum a party has to include particulars of the nature of the loss/damage suffered, the exact circumstances in which the loss/damage suffered, and the basis on which the amount claimed has been worked out or estimated: r155 o Within 28 days of the close of pleading plaintiff must serve a written statement of loss and damage: r547 (c) defense under the Limitation of Actions Act 1974; (d) duress; (e) estoppel; (f) fraud; o Needs to expressly state allegation and facts to constitute the fraud: Millhouse v Environautics (Sale of goods, seller sold goods of a lesser value than the contract price stated; McGill J – wouldn’t necessarily have to state contract price and real value was, but if you can you would to narrow the litigation; in that case they should have though) o If breach of statutory provision (e.g. SoGA/TPA) need to expressly plead breach of section…:Zipside v Anscor Muin J (g) illegality; (h) interest (including the rate of interest and method of calculation) claimed; (i) malice or ill will; (j) misrepresentation; (k) motive, intention or other condition of mind, including knowledge or notice; (l) negligence or contributory negligence; (m) payment; (n) performance; (o) part performance; (p) release; (q) undue influence; (r) voluntary assumption of risk; (s) waiver; o Needs to be specifically pleaded so other side has chance to respond to the allegation. (t) want of capacity, including disorder or disability of mind; (u) that a testator did not know and approve of the contents of a will; (v) that a will was not properly made; (w) willful default; (x) anything else required by an approved form or practice direction to be specifically pleaded. IF JUST SUING FOR MONEY (i.e. debts or liquidated demands): A claim for a debt or liquidated demands must state in the SOC: r150(3) (a) particulars of debt; (b) particulars of interest; (c) the amount claimed for the costs (in issuing claim and SOC) (d) a statement that the proceeding ends if the defendant pays before 28 days from service; (e) a statement of the additional costs of default judgment. 8 N.B. Debt or liquidated damages was a claim for a specific sum of money fixed by a scale or formula which does not depend on the court forming an opinion: Alexander v Ajax Sholl J. PARTICULARS: Party must include particulars necessary to: r157 (a) define the issues for, and prevent surprise; and (b) enable the opposite party to plead; and (c) support a matter specifically pleaded under rule 150. Eg. [10] says guests suffered gastro-intestinal, would need to plead more information/particulars: cost of medical damages, who got it, what is it, medical reports said ____, when, how dealt with, costs, damages listed, names of ill guests (to make connection with off food). Eg. what is expectation, can you sue for it. In particulars need to plead what stage in tender process, only two competitors, always won tenders in the past. IF in doubt – court favours the defendant: Where there is doubt about the sufficiency of particulars, it is resolved in favour of the defendant, so as to ensure their being in a position to fully understand and prepare for the case alleged against them: R v Associated Northern Colleries (per Isaacs J). If seeking order for better and further particulars: Party may seek an order for better and further particulars under r161 in the form of an interlocutory application. There is a lot of discretion when ordering for better and further particulars, including situations where there is no legal power, but merely a moral obligation: Bailey v FCT (per Gibbs J). IF Negligence Action: In negligence action need to include enough particulars to ground negligence rather than only very specific claims: Doonan v Beecham. Doonan v Beecham Facts: Plaintiff hit by motor vehicle driven by defendant. SOC set out number of particulars with respect to the allegned negligence. (e.g. speed, wrong side of road, failure to look, failure to slow down when danger arose, failing to apply brakes). Held: Trial Judge (overturned) could not infer on the evidence that accident was due to any particular cause particularised and therefore ordered jury to find for defendant. High Court held as long as could be reasonably inferred from all the evidence available within the pleadings and particulars that accident was due to the negligence of the defendant then it was permissible to find for the plaintiff. IF Claiming Award of Interest: If party intends to apply to the court for an award of interest: r159(1) (2) Does not apply to a proceeding for damages for personal injury or death; (3) Party must allege in the party’s pleadings particulars of: (a) amount or amounts on which the interest in claimed; (b) the interest rate or rates claimed; (c) the day or days from which interest is claimed; and (d) the method of calculation. (4) However the rate/s of interest need not be separately specified if the party is claiming at the rate/s specified in a practice direction. Philosophical Basis: Function of pleadings and particulars not to circumscribe the cause of action sued on – but to limit the issues of fact to be investigated: Katsilis v Broken Hill. 9 SEQUENCE OF PROCEEDINGS: 1. Statement of Claim (by plaintiff – stating claim and relief) 2. Notice of Intention to Defend (by defendant – either conditional or unconditional) 3. Defence (by defendant – attached to NOITD – negatives the facts alleged by plaintiff in SOC) 4. Counter-Claim (by defendant – establishing a claim back against the plaintiff) 5. Answer (by plaintiff - works like a defence to counter-claim) 6. Reply (by plaintiff – negatives the facts alleged by defendant in the defence) 10 STATEMENT OF CLAIM: Must be attached to a claim (Form 16): r22(2) o Must disclose a cause of action; INCLUDING the facts which support the relief sought and the remedy at sought at law. o Convenient to include introductory statements e.g. 1. The first defendant is and was at all times a company duly incorporated in Queensland. 2. The second defendant was at all material times a director of the first defendant. IF defamation: Need to identify plaintiff, facts to show the statement was reasonably referable to plaintiff, actual words used, the defamatory imputation that was connected to those words, all facts in relation to the precise publication alleged (by who, what and where), facts about the nature and extent of damages that occurred as a result of the publication of the imputation: Ron Hodgson v Belbedere Motors (added in facts that plaintiff found hurtful, but may explain the actions etc.) o Mere surplusage does not vitiate a pleading, but it is poor drafting practise; Ron Hodgson v Belbedere Motors IF negligence: Need to plead facts relating to duty, breach, and damage – not just that defendant was negligent: McCauley v Hamilton Island Enterprises (helicopter crash on pontoon, but didn’t argue that Cth should have know what was occurring at pontoon – argued pleading defective) o Court won’t strike out a claim just because it appears unlikely that it will succeed, unless can show that it is so unlikely that it constitutes an abuse of process (e.g. r171): McCauley v H
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