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Pleading And Particulars Notes

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VI. Pleadings and Particulars

Pleadings What are pleadings?

* Exchange according to time periods, for example, Defence needs to be filed within 28 days of service of statement of claim (UCPR r 14.3)

* Filed in the registry of the court or in court

Type of pleadings (UCPR Dictionary)

The pleadings process facilitates a fundamental requirement of the litigation process --- that the parties clearly know what the dispute is about (i.e., what the issue is) Pleadings are documents delivered between parties to litigation, in which they set out the material facts they intend to allege at the hearing of the action, put another way, states factual allegations/material which supports claim or defence. Pleadings narrow the areas of dispute, and specifically identify the issues and what needs to be resolved between the parties. Includes a statement of claim, defence, reply and any subsequent pleading for which leave is given under Part 14, but does not include a summons or notice of motion. The purpose of pleadings?

Join issues: issues in contention

Chi Yi Yi

UCPR r 14.14

The rule that if a dispute is judged by a court of competent jurisdiction, the judgment of the court is final and conclusive as to the rights and duties of the parties involved. Res judicata constitutes an absolute bar to a subsequent suit for the same cause of action.

Defining issues

* Pleadings allow parties to identify the aspects which they are not in agreement, thereby minimising expense and delay: Thorp v Holdsworth (1876) Give notice to each party of the other's case and a fair opportunity to meet it.

* Avoids trial by ambush (where a party wins not because of fairness but by catching the other party unprepared). Notice of the case/defence must be given to the other party --- an important aspect of natural justice and the rule of law: Banque Commerciale SA v Akhil Holdings (1990) Limits the ambit of pre-trial procedures such as discovery Limits the relevant and admissible evidence

* A party can only present a case to court on the basis of their pleadings

* A party cannot lead evidence outside their pleadings. Inform the the court of the issue

* The court need to know what it needs to decide: what is the dispute, what are the limits of the dispute, and what information is needed to supervise the case: The Why Not (1868) Found the basis for the relief which may be granted by the court. Form a permanent record: Jackson v Goldsmith (1950)

* Important to ensure that a dispute remains resolved by knowing what dispute was resolved

* Allows for the plea of res judicata. To ensure the efficient administration of justice --- Court and parties know what issues are in dispute. Australian Competition and Consumer Commission v Australialink Pty Ltd (No 3) [2009]
The function of pleadings is to state with sufficient clarity the case that must be met and to define the issues for decision. (Spender J) Matters to be pleaded

Not evidence

Parties Material facts substantiating each element of each cause of action 1

VI. Pleadings and Particulars

Particulars Remedies sought Rules of pleadings

UCPR r 14.7

Evidence means by which the material facts are to be proved. Material facts are

* facts which are crucial to supporting each of the elements of the cause of action

* facts which allow respondents know the case they have to meet.

UCPR 14.8 UCPR 14.14

State facts, not law

* What happened? What did people do/see/hear?

* Do not plead the legal consequence of these facts --- avoid mentioning entitlements, liability, duties, legal relationships (which are signposts that a question that a question of law is being pleaded).

* It is not sufficient simply to assert conclusion of law, such as that a common law duty of care is owed; the pleading must intelligibly state the facts on which the plaintiff relies for the existence of substantive law: Markisic v Department of Community Service of NSW (No 2) (1974) State facts, not evidence

* What happened? What did people do/see/hear?

* Evidence may be a fact in itself --- but for the pleadings, only an abstracted fact is needed without the detail of proof.

* The pleading should set out a simple, almost generalised statement which can be proved by whatever evidence is desired. Evidence should not be pleaded. State material facts only

* Material = relevant. Facts must be relevant to the claim which is being made.

* For the plaintiff, the relevant facts should establish the right which the court will enforce: therefore look at the facts relevant to the action and the remedy (e.g., for contract, the existence of the contact and its breach are relevant).

* What is relevant for one cause of action may be relevant to another. State all the material facts

* This goes without saying: material facts are those which establish the cause of action. All material facts are needed to give rise to the action.

* If not pleaded --- a fundamental defect in the pleadings. Possibly no evidence related to the missing acts may be adduced because the pleadings delimit the evidence: Philipps v Philipps State the facts concisely

* State facts briefly, succinctly and preferably in chronological order, in 'plain English'. Trial by ambush

* The trial by ambush culture in courts is no longer acceptable. There is now a 'card on the table approach': Glover v Australian Ultra Concrete Floors Pty Ltd [2003]

* Rule 14.23 of the UCPR requires a party's pleading to be verified by affidavit which is made on the pleading. A statement of belief is limited to those assertions of fact made in the pleading which have been verified. UNIFORM CIVIL PROCEDURE RULES 2005 PART 14 - PLEADINGS Division 2 - Defence and further pleadings

14.2 Trial without further pleadings (1) If in the opinion of the court: (a) the issues between the parties can be defined without further pleadings, or (b) for any other reason the proceedings may properly be tried without further pleadings, the court may order that the proceedings be so tried. 2

Drafting a Statement of Claim:

* Introductory statement
- who the parties are and how they are connected to the dispute.
- e.g, if defendant is incorporated the statement of claim should contain an allegation that the party was, at all material times, incorporated.. The body:

- In numbered paras, substantive allegations sufficient to establish each element of each cause of action. Usually chronological order is best.

* Claim for relief Drafting a Defence:

* Plead to each of the allegation of the SOC

* Admit; not admit; deny

* Plead any affirmative defence (e.g. fraud)

* Should another party be joined [who may be liable, or for contribution or indemnity) -cross claim.

* Is there a counter claim against the plaintiff or was there a contributory negligence?

* Is the claim statue barred (for example, limitations)?
Pleading example:

* If cause of action in contract -- What are the material facts that must be pleaded?

* Offer/acceptance, terms, breach, damage

* How would a Defence be drafted?

* May query existence of contract, terms of contract, fact of breach and or amount of damage. Pleadings:

* Plaintiff 's statement of claim

* Defendant must reply a defence within 28 days.

* Plaintiff then is entitled to file a reply to a defence within 14 days.

* Plaintiff is entitled to file another pleading by leave of the court within 14 days limitation after the service of its reply on the defendant. For example, plaintiff submitted a pleading to the defendant, and then the plaintiff has 14 days limitation for submitting another pleading without waiting for the defendant's reply. Require leave of the court Form -- Numbered paragraphs

Pleadings of facts in short form:

* Plaintiff claims money payable by the defendant in short form as according to subsection 1.

* Defendant file a notice requiring the plaintiff to plead the facts in detail within 28 days or the date specified by the Court for a defence.

* The plaintiff then had another 28 days after the service on him by the defendant to make an amended statement of claim.

* A note must be included to notify the defendant that the modification has been made according to the requirement.

* The defendant then has another 14 days limitation to send a defence. Money should paid to the plaintiff by defendant

VI. Pleadings and Particulars

(2) A court that makes an order under subrule (1) may direct the parties to prepare a statement of the issues involved in the proceedings or, if the parties do not agree on a statement, may settle a statement itself.

14.3 Defence (1) Subject to these rules, the time limited for a defendant to file a defence is 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence.

14.4 Reply (1) In proceedings in the Supreme Court or the District Court, a plaintiff may file a reply to a defence. (2) In proceedings in the Local Court, a plaintiff may file a reply to a defence only by leave of the Court. (3) The time limited for the plaintiff to file a reply is 14 days after service of the defence on the plaintiff.

14.5 Further pleadings (1) Except by leave of the court, a party to proceedings may not file any pleading subsequent to a reply. (2) The time limited for a party to seek leave to file a pleading subsequent to a reply ("the further pleading" ) is 14 days after service on the party of the pleading to which further pleading responds. Division 3 - Form of pleading generally

14.6 Pleadings to be divided into paragraphs If a pleading alleges or otherwise deals with several matters: (a) the pleading must be divided into paragraphs, and (b) each matter must, so far as convenient, be put in a separate paragraph, and (c) the paragraphs must be numbered consecutively.

14.7 Pleadings to contain facts, not evidence Subject to this Part, Part 6 and Part 15, a party's pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved.

14.8 Pleadings to be brief A pleading must be as brief as the nature of the case allows.

14.9 References in pleadings to documents and spoken words If any documents or spoken words are referred to in a pleading: (a) the effect of the document or spoken words must, so far as material, be stated, and (b) the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material.

14.10 Certain facts need not be pleaded A party need not plead a fact if: (a) the fact is presumed by law to be true, or (b) the burden of disproving the fact lies on the opposite party, except so far as may be necessary to meet a specific denial of that fact by another party's pleading.

14.12 Pleading of facts in short form in certain money claims (1) Subject to this rule, if the plaintiff claims money payable by the defendant to the plaintiff for any of the following: (a) goods sold and delivered by the plaintiff to the defendant, (b) goods bargained and sold by the plaintiff to the defendant, (c) work done or materials provided by the plaintiff for the defendant at the defendant's request, (d) money lent by the plaintiff to the defendant, (e) money paid by the plaintiff for the defendant at the defendant's request, 3

VI. Pleadings and Particulars

28 days or a date as specified by Court, see r 14.3 above.

(f) money had and received by the defendant for the plaintiff 's use, (g) interest on money due from the defendant to the plaintiff, and forborne at interest by the plaintiff at the defendant's request, (h) money found to be due from the defendant to the plaintiff on accounts stated between them, it is sufficient to plead the facts concerned in short form (that is, by using the form of words set out in the relevant paragraph above). (2) The defendant may file a notice requiring the plaintiff to plead the facts on which he or she relies in full (that is, in accordance with the provisions of this Part other than this rule). (3) Such a notice must be filed within the time limited for the filing of the defence. (4) If the defendant files a notice under this rule: (a) the plaintiff must, within 28 days after service of the notice: (i) file an amended statement of claim pleading the facts on which he or she relies in full, and (ii) include in the amended statement of claim a note to the effect that the statement has been amended in response to the notice, and (b) if a defence has not been filed, the time limited for the filing of defence is extended until 14 days after service on the defendant of the plaintiff 's amended statement of claim.

14.14 General rule as to matters to be pleaded specifically (1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. (2) In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specifically, may take the opposite party by surprise, or (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or (c) that raises matters of fact not arising out of the preceding pleading. (3) Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.

14.17 New matter may be raised in pleading A party may plead any matter even if the matter has arisen after the commencement of the proceedings.

14.18 Pleadings to be consistent as to allegations of fact (1) A party must not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with any of his or her previous pleadings. (2) Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.

14.19 Pleadings may raise points of law A pleading may raise any point of law. Division 4 - Verification of pleadings

Devision not apply to those pleadings, except ordered by the court.

14.22 Pleadings in proceedings for defamation, malicious prosecution, false imprisonment, death and personal injury (1) This Division does not apply to pleadings in proceedings for the recovery of damages for: (a) defamation, or (b) malicious prosecution, or (c) false imprisonment, or (d) trespass to the person, or (e) death, or (f) personal injury. (2) Despite subrule (1), the court may order that this Division is to apply to any or all pleadings in any such proceedings (including pleadings filed before the order is made) with such variations (if any) as the court may direct. 4

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