WEEK 9 - Lecture notes 9 PDF

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WEEK 9- Pleadings and gathering documentary evidence...

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WEEK 9- Pleadings and Gathering Documentary Evidence

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Amending pleadings and proceedings o The court has power pursuant to s 64 of the CPA to amend pleadings or to grant leave to amend any document in the proceedings even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings. o Generally an amendment takes effect not from the date of the amendment but from the date of the original document is amended. o However, where an amendment has the effect of introducing a new plaintiff or defendant, or a new cause of action the date of such an amendment in relation to that cause of action, subject to s 65, is taken to be the date on which the amendment is made. UCPR rr 6.28 and 19.2 (amendments to add or remove parties) conforms with s 64(3) of the CPA in this regard. o The court also has power to make an amendment that raises statue-barred matters, namely correcting a mistake in the name of a party; changing the capacity in which the plaintiff sues and permitting the addition or substitution of a cause of action that arose after the commencement of proceedings if the new cause of action arises out of the same or substantially the same facts as originally pleaded. Such amendment is authorised by s 65 of the CPA, despite anything to the contrary in the Limitation Act if the proceedings were commenced before the limitation period expired. o INSERT PIC OF TABLE

Pleadings-

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Policy/purpose- to define the issue the court must determine and help the parties understand the contended matters and issue in question [glover v Australia concrete floors] o The UCPR dictionary indicates that ‘pleadings’ include the statement of claim, defence, reply, and any subsequent pleading for which leave is given, but does not include a summons or notice of motion o Pleadings are applicable for proceedings appropriate for a trial rather than matters being dealt with by summary determination o Pleadings are the formal documents exchanged between the parties indicating the claims and defences o The pleading processs has incentive to respond- if the def doesn’t ‘traverse’ by denying or by making a statement of non admission in regard to each of the factual allegations in the statement of claim those facts not traversed are deemed to be admitted. o Drafting a defence- ADMIT, Deny- if you don’t deny, its taken to be admitted. o If the defendant does not file a defence within the time prescribed the defendant is in default and the plaintiff can apply to the court for a judgement to be given, known as default judgment, which essentially means

that defendant is taken to have admitted to the claims and concedes that they have no defence.

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If commencing proceedings by statement of claim, the originating process and peladings are contained in the same doc [ucpr 14.1] o Not all originating process involve pleadings i.e. summons o An important objective of pleadgins is that they provide a permanent record of boundaries of the case and allow the court to know the issues in the proceedings. o When considering pleadings: its difficult to distinguish between material facts, particulars and evidence which the art of the pleadings requires o When lawyers draft commencing pleadings they may want to keep optins open to accommodate further evidence o When lawyers defend a pleadings case they will strive to eliminate any lack of clarity so they know the case they’ve met.

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Pleadings define the issue in dispute o Originating pleadings set out material facts on which the plaintiff wished to rely upon to establish their cause of action.  Pleadings must give all particulars necessary to help the opposing party identify the case [ucpr 15.1]  If sufficient particulars are not supplied and the opposing party believes the material facts as pleaded do not provide a clear representation of the case that must be met, the opposing party may send a letter seeking furnished particulars o Defendant required to ‘transverse’ by admitting or denying allegations  If the opposing party doesn’t respond the court will take the ‘allegation of fact’ as admitted by the defendant  If admists- narrow issues to be determined by the court and allows party to be certain that element is proved. o Procedural fairness- party understands other partys case- no suprises- cards on table approach o Establish relevance for discovery of documents o Frames any res judicta/estoppel issues o Limits the courts inquiry.

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Rules about peladings o Must only plead material facts, not evidence [ucpr 14.7]  Aim to give snapshot of case  Must plead all facts necessary to consitue a complete cause of action or defence

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