Pleadings Tips and Traps
Pleadings are important not just because they serve procedural fairness as was noted by Mason CJ and Gaudron J in Banque Commerciale SA v Akhil Holdings (1990) 169 CLR 279 at 286, but also because rulings on the relevance and admissibility of evidence at trial will be decided by reference to your pleadings. Moreover, ultimately the trial judge will decide your client’s case on the basis of the evidence as it is related to the issues as defined by the pleadings. Pleadings are the pegs on which evidence hangs.
The most obvious and fundamental point about pleading is that you must first analyse both the facts and the law. There is no point in embarking upon the task until you do so closely and in as much detail as you have available in the time permitted. You must identify what cause or causes of action you rely upon; what the elements of that cause or those causes of action are; what evidence you have to prove each of those elements, and finally, what relief you seek. That is of inestimable importance, particularly for example in a loss of chance case, or one where you require declaratory relief, or relief in the nature of the now abolished prerogative writs of certiorari and mandamus.
Often it will pay to consider the relief you wish to obtain before you commence the pleading at all as the preconditions to the relief sought will guide you to the facts that must be pleaded and proved to make out the available cause or causes of action. For example, if the relief required by your client is the performance of a particular contract and not damages for its breach, then specific performance must be your cause of action, or one of them.
The most fundamental rule governing pleading is r 227 of the Supreme Court Rules 2000. That rule provides that the pleading must contain only a statement of the material facts relied upon and not the evidence by which they will be proved.
What are the material facts? Well, to answer that question you need to know what the elements of the cause of action are. For that you will need to go to the pleading textbooks, textbooks on the particular legal subject area and to the digests. In more difficult cases, such as those involving pure economic loss for instance, you will need to go to the High Court cases themselves, or at least to a very good commentary on them.
In identifying the material facts, do not overlook that the most material fact of all is the legal identity of the correct defendant and the identity of all of the necessary parties.
Also bear steadily in mind that when you first go to draw a pleading you may not have enough facts at your disposal to do so. Having identified the legal elements of the cause of action that are required for the relief that your client seeks, you will have created a checklist, and shortcomings in that list will send you back to the client and to other witnesses, or to available documentary evidence in order to fill in the gaps. Remember though that it is unethical to plead facts that are not presently at your disposal.
While on the subject of ethics, remember that it is also unethical to plead fraud or serious misconduct against a party unless your client specifically wishes to do so and you are satisfied that there is evidence to support the allegation.
You also need to be aware that a pleading, like the on-going obligation of discovery, is a living thing and may need amendment if new facts come to light and/or new causes of action emerge as available. Don’t just plead your client’s statement of claim or defence and counterclaim and never look at your document again until trial.
An allegation as to the legal effect of the facts pleaded, for example, negligence or breach of fiduciary duty or false and misleading conduct, is not of itself a material fact, but it is common enough these days in pleadings and appears to have been sanctioned by the decision of the NSW Court of Appeal in Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at [20] – [21].
Equally, there is nothing in the Supreme Court Rules about headings and subdivisions in pleadings, but it is generally accepted that these are useful in adding clarity to longer pleadings and aiding their comprehension.
Inconsistent pleadings are specifically permitted by r 230 of the Rules, so you may allege alternative cases in the one pleading, each based on the possibility that one of two available versions of facts will be found by the trial judge. The facts related to those cases must be stated separately or at least in such a way to show on what facts each alternative cause of action is based.
Now for some tips and traps.
Don’t dabble in defamation pleadings if you are inexperienced in that area. Since the Defamation Act 2005 was introduced, Tasmania’s defamation law is no longer a code and the Act embraces the common law. There is no greater common law pleading minefield than libel and slander, and pleading in these cases has, over many years, become a specialist area in NSW and Victoria.
Don’t plead conclusions, plead material facts. For example, don’t plead that the defendant’s conduct was misleading and deceptive, and then give particulars such as the representation was made in trade or commerce, the representation was false, and so on. You must plead the material facts not conclusions. The material facts are, for example, that the representation was made in the course of negotiations for the purchase of a business, and that it was untrue in that the restaurant had only 100 seats not 120. If you can further break down a pleaded allegation like that then you have started with a conclusion. When you can break an allegation no further then you can be confident that it is a primary fact.
Don’t let me confuse you here though. It is, as I have said, permissible to plead the legal effect of material facts. So you may still wish to plead, after pleading the conduct, the context in which it occurred and how it was untrue, that in those circumstances the conduct was false and misleading and deceptive within the meaning of the relevant section of the Australian Consumer Law or the State legislation.
Remember that particulars are not pleadings. Although they may be included in the document constituting the pleading, they do not form part of the pleading and so, if included, should be clearly marked as particulars. Lengthy particulars are best set out in a separate document delivered with the pleading or subsequently. This is often done of course in the case of particulars of damage in personal injury cases.
If you have pleaded all the material facts in separate paragraphs though, as you should have done, then often there will be no necessity for particulars.
There is, of course, in some cases such as running down cases and work injury cases, an accepted practice of pleading particulars of the negligent driving or the unsafe system. A common example is a particular of negligent driving that pleads that the defendant’s speed was excessive in the circumstances then existing. But actually that is still a conclusion. The material facts are more likely that the lawful speed limit was 50 kilometres an hour, that the defendant drove in excess of that speed, that the road was wet and slippery following recent rainfall, and that the defendant lost control of the vehicle.
I am not suggesting you should change the existing pleading practice in these areas – but you could – and even if you don’t it is helpful to think about your pleading in the way I have just demonstrated. Never trust a pleading just because you have it on a precedent database, or you found it on an old file. It may never have been tested in court or even gone to trial at all for that matter.
At times it can be very important to closely scrutinise pleading precedents. We know that in negligence there are existing categories of duty where there is no issue about its existence, motor vehicle cases and employment accidents, and so on; but in a pure economic loss case you will need to establish the facts that give rise to the duty.
You cannot just plead that the defendant was negligent and give particulars of the breach; for example, that the defendant was negligent in that it failed to advise the plaintiff she was eligible to join employee superannuation. This is to conflate the issues of duty and breach. The anterior question is whether an employer has any duty at all to advise employees of their best financial interests. The alleged duty must be framed and pleaded carefully and at a level of abstraction higher than the narrow facts of the particular alleged breach. For a classic example of the evils of merging the duty issue with the breach issue see CAL No 14 Pty Ltd v Scott (2009) 239 CLR 390, in particular per Hayne J at 416.
While on the subject of particulars, paragraph numbering generally is a matter to be aware of. You should keep any particulars to the least number of subparagraphs possible under one paragraph.
And, please check your pleading to make sure paragraphs referring to other paragraph numbers have not become lost or altered during various drafts of the pleading. Leave the space for paragraphs to be referred to blank or as a # symbol, and go through and number them only at the stage of the final draft.
Don’t admit allegations that are not pleaded. For example, the plaintiff may plead in a medical negligence case that the surgeon was a member of the Royal Australian College of Surgeons. The fact of the matter may be that he or she was a fellow of the College, not a member. As defendant you should not plead “the defendant admits that the defendant was a fellow of the Royal Australian College of Surgeons”. That is not what is pleaded against you. You deny that the defendant was a member and plead that he or she says that he or she was “at all material times a fellow”.
On the subject of the pleading device of “at all material times”, be careful not to overuse it and create an extra and unnecessary burden of proof. It is acceptable to plead that expression at the commencement of your pleading, for example, “at all material times the defendant was a duly incorporated company”, but be careful about later pleading that “at all material times the defendant was engaged in trade or commerce”, when there may be a number of times material to the action, and you only need to prove that the company was engaged at the time of the relevant representation to your client.
Pleading documents is another trap. Rule 234 of the Rules provides that unless the precise words of the document are material it is sufficient to state their effect as concisely as possible. And yet with regularity one sees it pleaded the “the plaintiff will refer to the contract at trial for its full terms and effect”. If the contents of the document are material, and if it is not convenient to set out verbatim or state concisely the effect of just the relevant paragraphs, then there is no reason why you cannot annex the document to the pleading. It would be infrequent though, I would think, where it would be necessary to do that.
Don’t use the expression the plaintiff or the defendant “relies on and repeats the facts pleaded at paragraphs 2 – 10”. Your pleading needs to set out the material facts, and once they are pleaded there is no need to plead them again. And you actually never will, quite literally, wish them repeated. For example, if you are pleading an estoppel in the alternative what you are really saying about the earlier pleaded facts is that “in the alternative, by reason of the facts pleaded in paragraphs 2 – 10 hereof the defendant is estopped from denying the representation was made.”
I am assuming that everyone is familiar with or at least consults Division 17 of the Supreme Court Rules 2000 dealing with pleadings. The pleading rules start at r 226 and go through to r 259. If you are not familiar with them you should visit them or re-visit them before commencing any pleading. The principal obligations thrown up, apart from pleading only material facts, are to so plead as to give reasonably explicit notice to any other party of all grounds of action and defences (r 227), to fully and un-evasively plead any denials (r 232), and to plead specifically any fact or matter that, if not specifically pleaded, may take the opposite party by surprise (r 251).
The rule that denials must be substantial and answer the point of substance can bite those who breach it. In a case I appeared in some years ago for the plaintiff it was alleged that the defendant had failed to take steps necessary for a statutory permission to endure. The defendant merely denied that allegation, and sought and was given particulars of the steps said not to have been taken. The defendant did not plead that it had taken any other steps. If the defence had been left at that until trial, difficulties might have arisen for the defendant because evidence cannot be led to prove facts not in issue. That is, having merely denied a failure, to do something, without more, the defendant may be prevented from leading evidence of other actual steps it might say it has taken but which have not been pleaded.
If there is one thing that I do believe about pleading it is that it requires very similar skills to those needed for good advocacy. Simplicity is the key, but how can you be clear and concise unless you are completely in command of your case? You need to know the facts very well, and you need to have a clear understanding of the legal principles that relate to the cause of action you wish to make out. If you don’t approach your advocacy in that way you will appear inept. The same is true of pleading.
In preparing this contribution I have drawn significantly on some excellent papers by eminent judges and counsel. I gratefully acknowledge my reliance upon and use of articles by Justice J C Campbell, The Purpose of Pleadings (2004) 25 Aust Bar Review 116, by Justice Giles simply entitled Pleadings and available from the NSW Bar Practice Course website and, in particular, the Seven Deadly Sins of Pleading by Anthony Morris QC published in Issue 32 of Hearsay, the journal of the Bar Association of Queensland, also available online. I commend them to you. I would also like to thank Associate Justice Holt for his input to this short paper.
ESTCOURT J
29 June 2015