Lecture 6 causes of action and pleading PDF

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causes of action


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Lecture 6 ǀ Week 6 Readings for this week: •

Bernard Cairns, Australian Civil Procedure, 10th ed, Ch 9 – parties and causes of action, paragraphs 9.10 – 9.300; 9.560 – 9.670

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Ch 6 & 7 - pleadings

At the end of this class you will be able to:  Identify the main pleadings filed in civil proceedings by plaintiff, defendants and third parties 

Identify the procedural requirements relating to causes of action and particular pleadings

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Identify the procedural requirements relating to causes of action and particular pleadings

Summary so far: Parties                 

UCPR r 61 – court can order addition or removal of party(s) UCPR r 62 – necessary parties for effective and complete adjudication UCPR r 63 – all persons entitled to the relief to be parties UCPR r 64 – joint and several liability UCPR r 65 – multiple parties if common question of law or fact or all rights to relief arise out of same transaction or event or series of transactions or events UCPR r 65 – 2 or more Ds if doubt as to liability for relief or quantum UCPR r 66 – identical relief unnecessary UCPR r 67 – parties incorrectly included or not included UCPR r 68 – inconvenient inclusion of a party – court can order separate trials, award costs, relieve party from attending trial, stay a proceeding until another decided, any other order UCPR r 69 – including, substituting or removing a party UCPR r 70 – procedure for including new party UCPR r 71 – D dead at start of proceeding UCPR r 72 – Bankruptcy, impaired capacity or death during proceeding UCPR r 74 – amendment of proceedings after change of party UCPR rr 75 – 77 – representative parties UCPR rr 82 – 92 – partnerships and business names UCPR rr 93 – 99 – persons under incapacity

Multiple proceedings See UCPR r 78 – court can order consolidation 合并 of proceedings if same or substantially the same question involved in all proceedings and the decision in 1 proceeding will decide or affect the other proceeding(s) UCPR r 79 – 2 or more proceedings to be heard together or in sequence See also UCPR rr 80 – 81

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Causes of action Definition  

a cause of action is every fact the plaintiff must prove, if traversed 详细考察, to support a right to judgment. Evidence does not form part of a cause of action.

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Under the rules the plaintiff may unite in the same action several causes of action

Joinder of causes of action UCPR r 60 P can include in the proceeding as many causes of action as P has against D R 60 (2) BUT – there must be 1 of the following: (a) Common question of law or fact (b) All rights to relief arise out of the same transaction or event or series of transactions or events (c) With the court’s leave either before or after the start of the proceeding Inconvenient inclusion of a cause of action UCPR r 68 – if the cause of action would delay the trial, prejudice another party or is otherwise inconvenient the court can order separate trials, award costs, relieve a party from attending, stay the proceeding until the trial between other parties is decided on condition D accepts findings of fact in the other trial, make another appropriate order

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Causes of action - Estoppel 禁止翻供  

What if a judgment is entered and a party wts to issue another set of proceedings involving a differt cause of action? Effectively if causes of action are not joined at the appropriate time, party may not be able to do so later

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Res judicata 已决事件 or cause of action estoppel Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – Facts: Worker injured by girders handled by a crane. Crane had been hired by Anshun from Port of Mel Authority. Injured worker sued Authority and Anshun. In contribution proceedings each sought a contribution from each other – order for 90/10 apportionment in Anshun’s favour. Authority then brought another set of proceedings against Anshun claiming an indemnity 赦免 under the crane hire agreement.

Held – these proceedings should have been brought at the time of the 1st proceedings Gibbs v Kinna (1991) 2 VR 19 Facts – employee’s employment found to be wrongfully terminated by the Industrial Relations Commission. Employee then brought proceedings against former employer for damages for breach of contract, breach of TPA and Fair Trading Act in the Magistrates Court。 Issue on appeal whether it was reasonable to defer the claims。 Held Ormiston JA – “when the respondent's services were terminated he commenced proceedings for unlawful termination of his employment pursuant to s.170EA of the Workplace Relations Act 1996 of the Commonwealth. …), I do not think his behaviour in failing to do so can be characterised as unreasonable to the extent that he should now be precluded from pursuing those claims. They are different causes of

action, requiring proof of different elements, albeit that the factual substratum will be largely the same; moreover at present it is by no means obvious that all facts relevant to the present proceedings were raised before the judicial registrar.”

Phillips JA “no matter how widely the principle in Anshun is understood its application on this occasion does not mean that the appellants succeed in this case in preventing the respondent from pursuing his claims in the Magistrates' Court. The remedy created by s.170DE(1) and following sections of the Industrial Relations Act 1988 (Cth) was, I think, intended to be expeditious and discrete, additional to and not wholly in substitution for any right, whether at common law or under another statute, to sue for conduct which is wrongful attending the termination of employment: contrast s.170ED(4) and compare Anshun at 612 per Brennan, J. “ Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 FACT Buyers of a business sued sellers for breach of warranty in relation to financial statements attached to the contract of sale and for misrepresentation。Buyers succeeded re breach of contract, failed on TPA claim 。Then sued the accountants

Held： Mason P, Handley JA, Heydon JA – “30. The purchasers, disappointed with their bargain, sued their vendor in contract and in misrepresentation. They lost their case in misrepresentation and were disappointed with their modest recovery in contract. A few weeks before the expiration of the limitation period they sued the accountants for what is in substance the same misrepresentations. In the first proceedings they had to prove that they relied upon those misrepresentations. This turned on the evidence of Mr Hoefl, the contemporary documents, and the surrounding circumstances. The purchasers lost that issue and seek to re-litigate it against the accountants on substantially the same 2

evidence in the hope that this time Mr Hoefl will be believed.”

Pleadings Recap – 

we have dealt with the rules relating to a claim, application, NITD and CNITD

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Note UCPRs – claims – rr 8 – 30; NITD and CNITD – rr 134 - 144

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Now we will look at how the parties either plead a case or respond to (ie defend) a case

Definition –  UCPRs Dictionary – Schedule 4: Pleading means: (a) for a plaintiff a concise简洁的 statement in a claim of the material facts on which the plaintiff relies; or (b) for a defendant the defence stated in a notice of intention to defend or a defence; and includes a joinder of issue and an affidavit ordered to stand as a pleading. Supreme Court Act 1995 (Qld) – s241 – Pleading includes any petition or summons and includes the statements in writing of the claim or demand of any

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plaintiff and of the defence of any defendant thereto and of the answer of the plaintiff to any set-off or counterclaim of a defendant.

So  

Plaintiff’s pleadings are statement of claim, reply and answer to a counterclaim if made Defendant’s pleadings are defence and counterclaim if made, and reply to P’s answer to CC

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P files a claim with statement of claim attached and D files NITD with defence (and counterclaim) attached

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Pleadings contain the material facts which parties rely on and intend to prove (via evidence called) at trial Informs the parties of the issues in dispute

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Informs the court about the dispute Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 – Mason CJ and Gaudron J – “18. The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In Liquidation) [1916] HCA 81; (1916) 22 CLR 490, per Isaacs and Rich JJ. at p 517. 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 and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. “

Formal requirements: what should pleading look like? R 164 (1) A pleading must -(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 or 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 rule 164 informing the party about the time for serving pleadings in response under rule 164. R164 Time for serving answer to counterclaim and reply (1). Unless the court orders otherwise, any answer to counterclaim must be filed and served within— (a) 14 days after the day the counterclaim is served; or (b) if the defendant to the counterclaim is not a party to the original proceeding, 28 days after the day the counterclaim is served. 3

(2). Unless the court orders otherwise, any reply must be filed and served within 14 days after the day of the service of the defence or answer to counterclaim.

Rules of Pleadings Fundamental rules (r 149(1)) [Need to identify all elements and include facts to support each element] (1) Each pleading must (r 149(1)) – a) be as brief as the nature of the case permits; and  Extreme repetition can prejudice the fair trial of a proceeding (Robinson v Laws)  However, some cases result in a SoC that is long and involved (Midland Milk)

b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and  material facts  all facts necessary to constitute cause of action or defence  Does not exclude the allegation of legal categories (eg. fiduciary/duty of care) Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 – Mason CJ and Brennan – “34. The suggestion that pleadings should be treated in the same way as any other form of admission fails, in our view, to take account of the function and object of pleadings, when they are not required to be verified, in outlining the party's case and defining the issues to be tried. Especially is this so in the case of pleading defences. A defendant is entitled to put a

plaintiff to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the plaintiff's claim, without asserting in an absolute sense the truth or correctness of the particular matters pleaded. Accordingly, we do not regard the defences filed by the Tribunal as constituting admissions on the part of the Tribunal or, for that matter, on the part of its individual members.” 

Distinguish facts from evidence  Eg. breach of contract, would allege oral agreement / conditions / date / that meeting took place etc –  not going to plead that he has a diary entry / witness at a meeting because = evidence - plead the facts, not the proof

c) state specifically any matter that if not stated specifically may take another party by surprise; and  Material facts must be stated in such a way that [def] can understand the materiality of the facts that is, how they are material to a cause of action (Kirby v Sanderson) d) subject to rule 156, state specifically any relief the party claims; and  If damages claimed, must state the exact nature and amount (incl the exact circumstances in which the loss or damage was incurred) (r 155)  court may grant relief not specified in the pleadings (r 156) e) if a claim/defence under an Act is relied on, identify the specific provision under the Act  Eg. s 18, Sch 2 (ACL) Competition and Consume Act 2011 (Cth) (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 (r 149(2)) 4

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Eg. negligence, would need to disclose info relevant to duty, breach, damages

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P alleges D’s negligence caused P’s loss – conclusion of law. If all the particulars of the negligence are pleaded a point of law is raised on the facts for the court to determine.

Matters to be specifically pleaded (r 150)

150 Matters to be specifically pleaded (1) Without limiting rule 149, the following matters must be specifically pleaded -(a) breach of contract or trust; (b) every type of damage claimed including, but not limited to, special and exemplary damages; Note: See also rule 155 (Damages). 155 Damages (1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed. (2) Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the party's pleading (a) the nature of the loss or damage suffered; (b) the exact circumstances in which the loss or damage was suffered; (c) the basis on which the amount claimed has been worked out or estimated. (3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type. (4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise. 547 Pl’s statement of loss and damage (c) defence under the Limitation of Actions Act 1974; (d) duress; (e) estoppel; (f) fraud;  Need to expressly state allegation and facts that constitute fraud (Millhouse – SOGs, seller sold at lesser value than contract price, held: didn’t necessarily have to state contract price and real value but if known, you should)  If you allege misleading conduct you have to plead it (Zipside) (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; (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) wilful default; (x) anything else required by an approved form or practice direction to be specifically pleaded. (2) Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference 推理must be specifically pleaded.  Eg. If claiming other party received written notice, allegation of fact that letter was sent, to establish an element of cause of action (3) If the plaintiff's claim is for a debt or liquidated demand only (with or without a claim for interest), the plaintiff must state the following details in the statement of claim (a) particulars of the debt or liquidated demand; (b) if interest is claimed particulars as required by rule 159; (c) the amount claimed for the costs of issuing the claim and attached statement of claim; (d) a statement that the proceeding ends if the defendant pays the debt or liquidated demand and interest and costs claimed before the time for filing notice of intention to defend ends; (e) a statement of the additional costs of obtaining judgment in default of notice of intention to defend.  See Form 16 at end for relevant info re r 150(3) ^^ (4) In a defence or a pleading after a defence, a party must specifically plead a matter that 5

(a) the party alleges makes a claim or defence of the opposite party not maintainable; or (b) shows a transaction is void or voidable; or (c) if not specifically pleaded might take the opposite parties by surprise; or (d) raises a question of fact not arising out of a previous pleading.

Particulars   

UCPR r 157 – pleading must contain particulars necessary to define issues for trial and prevent surprise, enable opposite party to plead and support a matter specifically pleaded under R 150 UCPR r 158 – need to particularise loss and damage

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UCPR r 159 – claim for interest – plead amount on which interest claimed, interest rate, when interest claimed from, method of calculation UCPR r 160 – particulars stated in the pleading or in a separate document and filed with the pleading. Further particulars can be given in letter exchange – must be filed UCPR r 161 - party can apply to Court for an order for further and better particulars. Making of this application does not extend time for pleading UCPR r 162 – if the particulars will prejudice or delay fair trial, are unnecessary or scandalous, frivolous or vexatious,

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otherwise an abuse of process court can strike out particular and award costs UCPR r 163 – if no compliance with r161 court can make orders, including judgment

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Particulars in a pleading: R 157 Particulars in pleading A party must include in a pleading particulars necessary to -(a) define the issues for, and prevent surprise at, the trial; and (b) enable the opposite party to plead; and (c) support a matter specifically pleaded under rule 150.

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R v Associated Northern Collieries: “..where I am in any doubt as to the sufficiency of the particulars I resolve it in the favour of the defendants, so as to ensure their being in a position to fully understand and prepare for the case alleged against them”

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So: when making an allegation in pleading, cannot be so broad that the other party is in doubt as to what you are specifically seeking to prove – eg. Unpaid Mortgage, dates and amount would need to be specified

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Bailey v FCT: circumstances in which party may be ordered to provide better and further particulars (this order is usually obtained by filing an interlocutory application – r 161)

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Particulars in a negligence action : o

Doonan v Beecham: Pl hit by a motor vehicle driven by def. SoC set out a number of particulars re alleged negligence - e.g. excessive speed, driving on wrong side of road, failure to look etc, failure to slow down when danger arose, failing to apply brakes. 

Trial judge held could not be inferred on the evidence that the accident was due to any particular one of the causes particularised above and therefore directed the jury to find for defendant.

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HC held trial judge took the wr...