LAWS1014 Lecture Notes - Lecture 3: Affidavit, Australian Law Reform Commission, Fiduciary
16 May 2018
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WEEK 3: Pleadings & Particulars, Gathering Evidence in Civil Cases
• The term 'pleading' is used to describe formal claims, defences and replies in a trial scenario
• Part 14 of UCPR. There are many rules about pleadings
• General rule to plead about matters specifically is in r 14.14 UCPR
3.1 Process of pleadings and general ideas surrounding:
• The process of all the pleadings (all of these are pleadings):
1. The first pleading is usually the originating process (the statement of claim)
2. The defendant's entering an appearance in the form of a defence constitutes their
pleading.
▪ Defence must be filed within 28 days of service: UCPR r 14.3
▪ Every allegation made in the statement of claim must either be ‘traversed’ by
admitting, denying or not admitting (where they neither admit or deny, or
perhaps do not know)
▪ See UCPR r 14.26
▪ If defendant fails to answer a pleading which requires a response, the court
will take any allegations to have been admitted. A default judgement may be
given
▪ If solicitors write that the client ‘not admits’ to the allegations in the
statement of claim, and this is deemed to be simply for the purpose of
convenience, the court may order cost consequences. This is because this
would force the opposing party to provide evidence to prove all those
allegations which may have been well within the knowledge of the solicitors
and clients e.g. ‘A was a tenant of B’s property.’
3. The plaintiff may file a reply to the defence
▪ Must be made within 14 days of service of defence: UCPR r 14.4
▪ The plaintiff, by default, is presumed to deny all of what is said in the defence:
UCPR r 14.27. Therefore no need to file a reply just to deny the defence since
its already presumed
▪ Reply cannot be used to plead new causes of action. These must be made in an
amended statement of claim (28 day limit see amendment rules below)
4. Further pleadings (such as cross-claims and set-offs) will require leave of the court:
UCPR 14.5
• Note: UCPR r 12.14 requires pleadings to be verified through affidavit
• Purpose of pleadings
Permanent record of boundaries of a case which narrow issues of dispute
▪ Usually, parties may only rely at trial on what is included in the pleadings
but there has been a relaxing of this notion in relation to cross-examining:
ASIC v Rich: How the plaintiff is allowed to challenge the
defendant’s case during trial. The court stated that if the plaintiff is
cross-examining an defence withness, they can go test that defence’s
witness in any way they see fit, to challenge the truth of what they
are saying. This is allowed even if this would look like it was
information not in the statement of claim → Plaintiff should be
allowed to challenge completely the defendant’s case. But you are
not allowed to add anything to a statement of claim
▪ Another relaxing of rule: in Asic v Rich provides that if both parties conduct
themselves at trial demonstrates to the court that they accept material, not
being put into the pleadings, then the court might allow a decision to be
made based on that new material
Allows court to know issues
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Allows sufficient exchange between parties and fair opportunity to meet issues in
proceedings
▪ It is all about notice, dur process and procedural fairness
▪ See ‘surprise’
▪ All intertwined
Pleadings limit the extent of discovery, obtaining evidence and interrogatories and
govern the extent of the relevant evidence
Avoiding surprise:
▪ UCPR r 14.14 states that in a statement of claim the plaintiff must plead
specifically any matter that, if not pleaded specifically, may take the
defendant by surprise. This recognises the public interest in requiring the full
disclosure of a party’s case before trial
▪ Mcclellan CJ in Kasupene v Ajaz Foundry: ‘The purpose of rule 14 is to
ensure the efficient disposition of litigation and avoidance of ‘trial by
ambush.’”
▪ The ‘cards on the table approach’ is now favoured: IPP JA in Glover v
Australian Ultra Concrete Floors
• Amendment of statement of claim:
UCPR r 19.1 Amending a statement of claim
28 days – without leave – see (1) and the technicality about date being fixed
3.2 Elements of pleadings: material facts and particulars
• Material facts
In pleading, there is a cause of action or defence with the elements needed to
establish that action or defence
These elements are supposed by material facts
Material facts helping avoid surprise: Hodgson JA in Kirby v Sanderson Motors: ‘the
general requirement to avoid surprise means that material facts must be stated in
such a way that the defendant can understand the materiality of the facts, that is, how
they are material to a cause of action’
UCPR r 14.14 : what exactly needs to be included in the pleadings to avoid surprise
Kirby v Sanderson Motors Pty Ltd:
(1) Material means material to the claim, that is, to the cause or causes of
action which are relied on
(2) The requirements of a statement of material facts does not exclude the
allegation of legal categories, such as duty of care, fiduciary duty, trust
and contract
(3) The general requirement to avoid surprise means that material facts msut
be stated in such a way that a defendant can understand the materiality of
the facts, that is, how they are material to the cause of action
Material facts are not guarantees/assertions of truth:
▪ Upon signing of affidavit with pleading (UCPR r 14.24) this shows deponent
of affidavit as verifying that allegations of fact, are, AS THEY BELIEVE,
true.
Material facts and evidence:
▪ Material facts are proven with evidence
▪ BUT evidence is not pleaded, unless specific words are critical to support an
action/element of the claim
• Particulars
Distinction between pleadings and particulars:
▪ Pleadings give basic information about what the material facts are
▪ The particulars limit the generality of pleadings and give more detail to more
accurately define the issues, while not changing the cause of action
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▪ Goldsmith v Sandilands: Gleeson CJ: The function of particulars is not to
expand the issues defined by the pleadings, but to fill in the picture of the
plaintiff’s cause of action with information sufficiently detailed to put the
defendant on his guard as to the case he has to meet and to enable him to
prepare for trial.’
▪ Particulars are separate from pleadings and are fundamentally important!
Particulars cannot cure defective pleadings i.e. if a material fact is not
pleaded but is described in the particulars, a court may not allow a party to
rely on the unpleaded matter: Boral Bricks v Cosmidis
Rules of particulars contained in UCPR 15.1-15.10
▪ UCPR r 15.1 Court may order a party to file all necessary particulars to the
claim, defence, or any other pleading, - to enable opposing party to identify
the case they need to meet
▪ UCPR r 15.3 requires that particulars be given for claims of fraud,
misrepresentation, breach of trust, wilful default or undue influence
▪ UCPR r 15.5 Allegations of negligence and breach of statutory duty in
common law claims in tort - rules about particulars that allege negligence
or statutory duty breach
▪ UCPR r 15.5-7: Particulars must be given for claims for certain expenses
and damages
▪ UCPR r 15.9 Manner of giving particulars – particulars are to be set out
in the pleading or, if that is inconvenient, set out in a separate document
referred to in the pleading and filed with the pleading
▪ UCPR r 15.10 Order for particulars – the court can order a party to file
particulars
▪ Considerations similar to those that would allow for matters outside of
the pleadings to be considered may allow for evidence outside the
particulars to be adduced: See Douglas v John Fairfax; Dare v Pulham
• Function of particulars:
Enable parties to know what evidence to have available
Allows parties to know what issues of fact will be investigated: Kelly v Kelly, Bailey
v Federal Commissioner of Taxation
The important thing is not knowing the actual facts, but having adequate knowledge
of what the other party alleges are the facts, to which they must respond to: Turner v
Dalgety & Co Ltd, Phillopini v Leithead
Avoiding taking up time with questions not in dispute
Avoiding time taken to prepare to meet issues which will not arise which in turn
decreases legal costs! → Just, quick, cheap: see McSpedden v Harnett, Turner v
Dalgety & Co Ltd
Prevent unfairness when one party taken by surprise
Saving extra
3.3 Requirements of reasonable prospect of success
• The statutory duties of legal practitioners:
s56(4) of CPA: statutory duty to not conduct themselves to cause their client to
breach the client’s duty to assist the court
Clause 2 of Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW)
(LPULAA)
Practice Note SC Gen 5 Supreme Court – Costs Orders against Legal Practitioners
• Requirements of Cl2Sch2 of LPULAA
Requires that legal practitioners, before filing pleadings, certify that ‘there are
reasonable grounds for believing on the basis of provable facts and a reasonably
arguable view of the law’ that the claim/defence has ‘reasonable prospects of success’
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 3: pleadings & particulars, gathering evidence in civil cases: the term "pleading" is used to describe formal claims, defences and replies in a trial scenario, part 14 of ucpr. There are many rules about pleadings: general rule to plead about matters specifically is in r 14. 14 ucpr. If defendant fails to answer a pleading which requires a response, the court will take any allegations to have been admitted. If solicitors write that the client not admits" to the allegations in the statement of claim, and this is deemed to be simply for the purpose of convenience, the court may order cost consequences. Therefore no need to file a reply just to deny the defence since its already presumed: reply cannot be used to plead new causes of action. These must be made in an amended statement of claim (28 day limit see amendment rules below: further pleadings (such as cross-claims and set-offs) will require leave of the court:
