Rules of Pleadings

Question 1

What is a pleading?

Answer 1

Formal written statements of the claim and defence.

Question 2

What is the course of pleadings?

Answer 2

1. Statement of claim
2. Defence
3. Reply

Question 3

What is included in pleadings?

Answer 3

Brief statements of all material facts the parties intent to allege.

Rule 149
Primrose v Cooloola

Question 4

What is the purpose of pleadings?

Answer 4

To clearly state the case and ensure procedural fairness.

Banque Commercial SA

Question 5

When will a pleading require leave of the court?

Answer 5

Any pleading after the reply will require leave of the court.

Question 6

When is a pleading embarrassing?

Answer 6

When it is unintelligible, ambiguous, vague, too general, so as to embarrass the opposite party who does not know what is alleged against him.

Priest v NSW

Question 7

Are pleadings binding?

Answer 7

Yes. Pleadings are binding and any cause of action (COA) or defence can be rejected if raised later in the proceedings.

Banque

Question 8

What is a statement of claim?

Answer 8

Where the plaintiff alleges all material facts to the cause of action.

Question 9

What must a defendant do in a defence?

Answer 9

Defendant must answer specifically each allegation in the SOC.

Question 10

How do you plead a counter-claim?

Answer 10

A counter claim is plead in the same document as the defence.

Question 11

Do you need to plead any relief sought in the SOC?

Answer 11

Yes. MUST.

Question 12

What matters must be specifically pleaded?

Answer 12

See Rule 150.

Question 13

What happens if you do not plead matters that must be specifically plead?

Answer 13

Failure to plead matters which must be specifically plead may result in you being precluded from leading evidence.

City of Sydney v Streetscape Projects

Question 14

Facts from which inferences can be drawn MUST be specifically plead - name the case.

Answer 14

Dominus Pty Ltd v Daydream Island

If knowledge is assumed, all facts which drw the inference must be plead

Question 15

Which rules are relevant for pleading damages?

Answer 15

Rule 150
Rule 155
Rule 547

Question 16

In a defence, do you need to replead facts that have been asserted in an earlier pleading?

Answer 16

No

Rule 150 (4)

Question 17

Do you need to plead presumed facts?

Answer 17

No. Not if law presumes the fact in the party’s favour OR the burden of proving the fact lies with the other party.

Rule 151

Question 18

Which rule deals with spoken words and documents?

Answer 18

Rule 152

Question 19

If you are denying a condition precedent (which is presumed in a pleading) do you need to specifically plead the denial?

Answer 19

Yes

Rule 153

Question 20

Can a party make inconsistent allegations or claims in a pleading?

Answer 20

Yes. Only if they are pleaded as alternatives.

Rule 154
Liddicoat v Asteron Life

Question 21

What must be set out if pleading damages?

Answer 21

The nature and amount of damages.

Rule 155

Question 22

Can the court grant general relief, even if it was not plead?

Answer 22

Yes

Rule 156

Question 23

What is the role of particulars?

Answer 23

a. define the issues for trial and prevent suprise;
b. enable the opposite party to plead
c. support a matter to be specifically pleaded under Rule 150.

Rule 157

Question 24

Role of particulars is to impose fairness and justice to the defendant, sufficient to enable the defendant to be on guard - name the case.

Answer 24

Thiess v FFE

Question 25

Do you need to particularise damages?

Answer 25

Yes. If it includes claims for money, exemplary or aggravated damages. ## Footnote Rule 158 *Uren v John Fairfax*

Question 26

If claiming interest under Civil Proceedings Act do you need to particularise?

Answer 26

Yes ## Footnote Rule 159

Question 27

How do you give particulars?

Answer 27

In the pleading OR in a separate document to be filed and served with the pleading. ## Footnote Rule 160 (1)

Question 28

How do you give further particulars once pleadings filed?

Answer 28

Can give further particulars at later date by correspondence but this must also be filed. ## Footnote Rule 160

Question 29

Can a party seek an order of the court for further and better particulars?

Answer 29

Yes ## Footnote Rule 161

Question 30

Would a court ever strike out particulars? When might this happen?

Answer 30

Yes. If: a. it has tendency to prejudice or delay a fair trial b. if unnecesary or scandalous c. if frivolous or vexatious d. if an abuse of the process of the court. ## Footnote Rule 162 (1)

Question 31

If the court strikes out a particular, can they order costs?

Answer 31

Yes. Court may order the costs of the application to be paid on an indemnity basis. ## Footnote Rule 162 (2)

Question 32

If party does not comply with order to provide further or better particulars, what can the court do?

Answer 32

The court may make the order, including judgement it considers appropriate. ## Footnote Rule 163

Question 33

What is the timeframe for serving an answer to a counterclaim and a reply?

Answer 33

14 days after the counterclaim is served. If the defendant to the counterclaim is not.a party to the original proceedings then 28 days. ## Footnote Rule 164

Question 34

What is the result of failing to reply to counterclaim within the required timeframe?

Answer 34

It is treated as an irregularity and late delivery can be effectual. ## Footnote *Morrison v Australian Postal Corporation*

Question 35

Can a party who pleads a non-admission, give or call evidence in relation to a fact not admitted.

Answer 35

No, unless the evidence relates to another part of the party's pleadings. ## Footnote Rule 165

Question 36

How does a party answer pleadings?

Answer 36

Denial Non-Admission Admission ## Footnote Rule 165

Question 37

Which rule deals with denials and non-admissions?

Answer 37

Rule 166

Question 38

Will an allegation of fact be automatically taken to be admitted?

Answer 38

Yes, unless specifically denied or stated to be not admitted. ## Footnote Rule 166 (1)(a)

Question 39

When can a party plead a non-admission?

Answer 39

a. a party has made inquiries to find out if allegation is true/ untrue b. inquiries are reasonable when considering time frames c. the party remains uncertain as to truth/ falsity of the allegation ## Footnote Rule 166 (3)

Question 40

Does a party need to explain why an allegation is denied or not admitted? Name the rule and the case.

Answer 40

Yes ## Footnote Rule 166 (4) *Cape York Airlines Pty Ltd v QBE Insurance (Australia) Ltd*

Question 41

What happens if a party does not explain why an allegation is denied or not admitted?

Answer 41

The allegation is taken to be admitted. ## Footnote Rule 166 (5)

Question 42

What case deals with Denials and Non-Admissions?

Answer 42

*Cape York Airlines v QBE Insurance* There is a subtle but palbable distinction between stating grounds for a denial on the one hand and giving direct explanation for the party's belief the allegation is unture on the other. The latter is what is expressly required by the UCPR.

Question 43

What happens if the court deems an allegation which was denied or not admitted SHOULD have been admitted?

Answer 43

The court may order the party who denies, not admittted to pay additional costs caused by the denial or non-admission. ## Footnote Rule 167

Question 44

When do pleadings close?

Answer 44

a. when pleading is served after defence or counter-claim; OR b. 14 days after the service of the defence. ## Footnote Rule 169

Question 45

Which rule deals with striking out pleadings?

Answer 45

Rule 171

Question 46

When would a court strike out a pleading?

Answer 46

1. Factors in rule 171. 2. In clear cases only. 3. Especially when pleaded case is circumstantial only (*Royalene v Registrar of Titles)* ## Footnote Rule 171

Question 47

If error in pleadings is related to expression of COA and not the existence of a COA can one re-plead?

Answer 47

Ordinarily yes as Rule 171 only concerned with striking out pleadings not the proceeding itself. ## Footnote *South-West Forest Defence Foundation*

Question 48

Failure to plead a COA or defence may be called 'embarrassing' ad struck out under Rule 171. Name the case.

Answer 48

*Turcinovic v Westpac*

Question 49

Is 'embarrassing' retained in legislation?

Answer 49

No. BUT Rule 171(1)(b) is equivalent and can be relied upon in some circumstances. ## Footnote *Robert Bax v Cavenham*

Question 50

Will a court strike out unnecessary allegations?

Answer 50

Court may not be inclined to strike out suplerfluous allegations if harmless. ## Footnote *Kev Leamon Earthmovers v Hammond Villages*

Question 51

Scandalous

Answer 51

Irrelevant and indecent/ offensive and aimed at prejudicing opposition. ## Footnote *Butler v Crowley*

Question 52

Vexatious

Answer 52

* No reasonable grounds for claims * No legitimacy of motives * Repetition of allegations already rejected * Disregard for court procedures, practices & rulings * Harrassment of subject ## Footnote *Re Cameron*

Question 53

Abuse of Process

Answer 53

If they can be seen to be foredoomed to fail or its an attempt to litigate anew a case already decided. ## Footnote *Walton v Gardiner*

Question 54

Not required but is permitted for indemnity costs if struck out - name the case.

Answer 54

*Gideona v Suncorp Metway*