CCP 8. Pleadings and Particulars, Gathering Evidence PDF

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Pleadings and Particulars, Gathering Evidence...

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CCP 8. Pleadings and Particulars, Gathering Evidence PLEADINGS GENERALLY ● An Originating Process commenced by either: ○ A Statement of Claim (type of pleadings) ○ A Summons (not a type of pleadings) ● Pleadings: document delivered between the parties of litigation, which sets out the material facts of claim or defence (put another way, states factual allegations/material which supports claim or defence). ○ Must go to a legal claim or cause of action. ● Pleadings are filed in the registry of the court or in court. ○ Only originating process must also be served upon the defendant personally. After this, you can do it via the registry and send to their lawyers or something like that. ● Note: ‘pleadings’ may refer to: ○ The category of documents; ○ The claims made out in the document?

Types of Pleadings ● (1) Statement of Claim ● (2) Defence ● (3) Reply by Plaintiff to the Defence ● Other pleadings may be served with leave of court (UCPR r 14.5) ○ Amendments are becoming increasingly restricted to add new grounds to their case. ● UCPR Dictionary: Schedule 99

Purpose of Pleadings Goldsmith v Sandilands (2002) 190 ALR 370 ● “The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. 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 cause he has to meet and to enable him to prepare for trial.” - Gleeson CJ

● Purpose of pleadings is to: ○ found a basis for the relief which may be granted by the court; ○ provide a permanent record – can prevent litigation at a later date on the same issues; ○ provide the foundation for procedural fairness: gives other party notice of case and a fair opportunity to meet it; ○ define and limits the issues for decision/trial; ○ limit the ambit of pre-trial procedures such as discovery; ○ limit the relevant and admissible evidence. ● A party can only present a case to court on the basis of their pleadings. ○ A party can not lead evidence outside their pleadings.

Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 ● “The function of pleadings is to state with sufficient clarity the case that must be met...In this way pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her...The rule that… relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness.” - per Mason and Gaudron JJ (Brennan Agreeing)

Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 Facts: ● P claimed damages for work injury → lost at trial → appealed. ● D’s pleadings implied acceptance of P’s version of accident ○ D did not admit negligence, giving impression he would be challenging whether P’s version of events constituted negligence. ○ + challenge to extent of damage ● But ‘case at trial ... a different kettle of fish’. ○ ‘tantamount to alleging fraud’ ○ = ‘contrary to the surprise rule’

Kasupene v Ajax ● Ajax: equipment failure. ○ The argument was that there was a range of of basis in which negligence can be made out. Was it an inherent machine failure, or the plaintiff’s negligence, etc. ○ Unclear what the negligence was → prone to surprise.

Matters to be Pleaded ● Any material fact that might surprise the opposing party if not included must be included in pleadings.

UCPR r 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.

Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 ● (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 must 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.

Form Requirements for Pleadings ● (Note: applies to all three types of pleadings) ● Pleadings are to be divided into numbered paragraphs (UCPR r 14.6). ● Pleadings are to be as brief as possible (UCPR r 14.8). ○ A sentence or two for a pleading. ○ Particulars may be longer - fills in the gaps of the pleadings. ○ Pleadings are intended to be a summary document. ● Pleadings 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 (UCPR r 14.7). ● If there are references to documents or spoken works in a pleading, their material effects must be stated, but not all their precise terms (UCPR r 14.9). ● A party may make an allegation of fact, but must be consistent throughout their pleadings (UCPR r 14.18). ● Pleadings may raise a point of law (UCPR r 14.19) ○ Ordinarily a cause of action (legal claim), and not exactly a point of law. ● A party’s pleadings (including any amendment of the pleading) must be verified by an affidavit - only applies to proceedings in the SC and DC (UCPR r 14.23). ○ Does not apply for pleadings in proceedings for defamation, malicious prosecution, false imprisonment, trespass to the person, death, or personal injury.

FORMS OF PLEADINGS 1. Statement of Claim CONTENTS ● Court ● Parties - names, addresses, contact details ● Type of claim e.g Torts - Negligence Public Liability ● Relief Claimed e.g Damages, Interest, Costs

DRAFTING A STATEMENT OF CLAIM ● Introductory statements:

● Pleadings and Particulars ● Signature of Legal Representative ● Notice to Defendant ● How to Respond ● Address of Registry of Court

○ Who are the parties and how are they connected to the dispute? ● The body: ○ In numbered paragraphs, substantive allegations sufficient to establish each element of each cause of action. ○ Pleadings + particulars → pleadings + particulars → pleadings + particulars. ○ Usually chronological order is best. ● Claim for relief. ● Heads of loss (not covered in this course).

2. Defence to Statement of Claim ● A defence must be filed within 28 days of service of statement of claim (UCPR r 14.3). ● A defence pleading must ‘traverse’ each factual allegation in statement of claim by either (i) admitting, (ii) denying or (iii) not admitting; ○ Not admitting → may be that the burden of proof is on the plaintiff or the defendant may not remember the details of an event. ○ Denying → challenging directly what was pleaded by the plaintiff. ● Failure to traverse will result in a deemed admission (UCPR r 14.26).

UCPR r 14.26 Admission and traverse from pleadings ● (1) An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless: ○ (a) in the pleading in response, the opposite party traverses the allegation, or ○ (b) a joinder of issues under rule 14.27 operates as a denial of the allegation. ● (2) A traverse may be made by denial or by a statement of non-admission, either expressly or by necessary implication, and either generally or as to any particular allegation. ● (3) Despite subrule (1), a pleading in response to a pleading that alleges the suffering of damage or an amount of damages is taken to traverse the allegation unless it specifically admits the allegation. UCPR 14.27 Joinder of Issue ● (1) A pleading may expressly join issue on a previous pleading. ● (2) If there is no reply by a plaintiff to a defence there is an implied joinder of issue on that defence. ● (3) If there is no answer by the opposite party to a reply or subsequent pleading, there is an implied joinder of issue, express or implied, on a statement of claim.

● (4) There can be no joinder of issue, express or implied, on a statement of claim. ● (5) An implied joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading. ● (6) An express joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading other than an allegation that is expressly admitted.

● Usually, parties may only rely at trial on what is included in the pleadings → but see ASIC v Rich.

ASIC v Rich [2006] NSWSC 712 ● Plaintiff is entitled, during cross-examination, to attack evidence of matters raised in a defence that were not raised in the statement of claim. ● Plaintiff is entitled to challenge the defendant’s evidence, where that evidence purports to answer the plaintiff’s pleaded claim, even if the plaintiff’s challenge gives the appearance of a different, unpleaded, case. ● Plaintiff would not be allowed to argue for relief based on an unpleaded claim.

DRAFTING A DEFENCE ● Plead to each of the allegations in 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 P or was there contributory negligence? ● Is the claim statute barred due to passing the limitation period?

3. Plaintiff’s Reply Pleading ● A reply pleading is used to respond to defences as pleaded in the defence. ● Must be made within 14 days of service of defence (UCPR r 14.4). ● Defence deemed to be denied if not filed (UCPR 14.27). ● Reply cannot be used to plead new causes of action. ○ New causes of action must be pleaded in an amended statement of claim. ● See Young & Hones [2014] NSWCA 337

PARTICULARS What are Particulars? UCPR r 15.1 Pleadings must give all necessary particulars ● (1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

● Particulars: details of material facts (but not the evidence of those facts). ○ Particulars of pleadings are provided in the Statement of Claim or Defence; or they are provided separately. ○ Pleadings = material facts ○ Particulars = details of material facts ● Purpose of particulars is again to define scope of evidence and prevent surprise (see Bailey v FCT) ○ Informs other side of case they have to meet. ● Any particulars necessary to identify case pleaded (UCPR r 15.1) ● Particulars must be given: ○ for claims of fraud, misrepresentation, breach of trust, wilful default or undue influence (UCPR r 15.3), ○ where claim is for negligence or breach of statutory duty (UCPR 15.5), ○ for claims for certain expenses and damages (UCPR rr 15.6-15.8) ● The Court may order a party to file particulars (UCPR r 15.10). ● 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). ● 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 (see Boral Bricks v Cosmidis). ● Some courts no longer maintain strict distinctions between pleadings and particulars (see BWK Elders Australia v Westgate).

Difference between Particulars, Facts and Evidence ● Material fact: “The defendant entered a contract with the plaintiff”. ● Particulars: “The contract was entered orally on 23 March 2015 at the University of Sydney. The terms of the contract provided etc...” ● Evidence: “On or about 12:00pm, the defendant said to the plaintiff: “I promise to lend you my uni notes if you buy me a beer.” At about 12:30pm the plaintiff purchased a Coopers Ale at Manning bar which he handed to the defendant... Etc ● Particulars v evidence - Allianz v Newcastle Formwork Constructions.

Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 at [18] (Quoting Sims v Wran (1984) 1 NSWLR 317 at 321-22): ● “What must be included in particulars is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet… There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends on what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it.”

REASONABLE PROSPECT OF SUCCESS

Lawyers’ Ethical Obligations to the Process ● The requirements of the overriding purpose (CPA s 56) are reinforced by the duty to the court and the requirement to exercise independent judgment, including limiting hearings to the real issues in dispute and presenting the client’s case as quickly and simply consistent with its robust advancement (ALRC??).

CPA s 56 Overriding purpose ● (3) Party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. ● (5) The court may take into account any failure to comply with subsection (3) in exercising a discretion with respect to costs.

● Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. ○ A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty (r 3.1).

Legal Profession Uniform Law Application Act 2014 (NSW) Schedule 2.2 Law Practice not to act unless there are reasonable prospects of success ● (1) A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner …responsible for the provision of the services…reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success. Schedule 2.4 Restrictions on commencing proceedings without reasonable prospects of success ● (1) The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct. ● (2) If a practitioner files a claim they must 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 or the defence…has reasonable prospects of success” Schedule 2.5 Costs order against law practice arising without reasonable prospects of success ● Where a legal practitioner or law practice acts without reasonable prospects of success the court may order any other party against the whole or any part of costs payable. Schedule 2.6 Onus of showing facts provided reasonable prospects of success ● If the trial court is of the view there were no reasonable prospects of success, there is a rebuttable presumption to that effect. ● The onus of rebutting the presumption is on the legal practitioner/law practice

Application of CP Themes ● Pleadings and particulars allow parties to understand the case (no surprises) increasing access to justice and providing a basis for procedural fairness. ● Pleadings and particulars to be brief and clear which assists “cheap and quick” aims. ● Amendment often allowed to ensure “just” and natural justice right to be heard. ● Balance particularly difficult with unrepresented litigants and hopeless pleadings.

● Tricky to be both cheap and quick.

DEFECTIVE PLEADINGS ● If a party does not plead in accordance with rules then there are a number of consequences. ○ Pleadings (whole or part) may be struck out (UCPR 14.28). ○ Summary judgment or dismissal can be ordered (UCPR 13.1, 13.4). ○ Unable to obtain relief - lose litigation.

UCPR r 14.28 Circumstances in which court may strike out pleadings ● (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if: ○ (a) No reasonable cause of action (or defence) is disclosed; ○ (b) It has a tendency to cause prejudice, embarrassment or delay; ○ (c) It is otherwise an abuse of process. UCPR r 13.4 Frivolous and vexatious proceedings ● (1) The court may order that proceedings be dismissed generally if: ○ (a) the proceedings are frivolous or vexatious, or ○ (b) no reasonable cause of action is disclosed, or ○ (c) the proceedings are an abuse of the process of the court.

● Strike out applications are addressed to the form of the pleadings – what is contained on the face of the pleadings – not to the merits of the cause of action (or lack thereof). ○ Determination of strike out application is generally made on the basis of the pleadings, not on evidence, although the court may receive evidence if such evidence is relevant or useful (UCPR r 14.28(2)). ○ Usual order if strike out application is successful is to strike out the offending parts of the pleading (or the entire pleading if necessary) and allow the party leave to amend to correct the defects. ○ If the court finds that there is no reasonable cause of action, no matter how the party tried to plead it, the matter may be dismissed. ● Defecting Pleadings Summary

Defect

UCPR Rule

Not in correct form

14.5

Pleads evidence, not facts

14.7

Not specific or brief

14.14/14.8

Inconsistent allegations of fact

14.18

No reasonable cause of action; Prejudice, embarrassment or delay; Abuse of process

14.28 (strike out circumstances)

No reasonable cause of action; Frivolous or vexatious; Abuse of process

13.4 (dismissal circumstances)

AMENDMENT OF PLEADINGS ● Amendment of pleadings may be necessary for a variety of reasons: ○ Add/remove party ○ Add/remove cause of action or defence ○ Add/remove fact ○ Fix error/mistake ○ Clarify pleading

UCPR r 19.1 Amending a Statement of Claim ● (1) A plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial. ● (2) If a plaintiff amends his or her statement of claim under subrule (1) after the defendant has filed a defence, the defendant may amend his or her defence at any time within 14 days after service of the amended statement of claim. ● (3) A plaintiff’s right to make an amendment under subrule (1) is not affected by any amendment the plaintiff has made under rule 7.22. Note: increasing reluctance of courts to grant leave.

● The power to amend documents arises from s 64 of the CPA.

CPA s 64 Amendment of documents generally ● (1) At any stage of proceedings, the court may order: ○ (a) that any docume...