Pleadings - Civil Procedure - "the Science of Pleadings"

The word “pleading” is defined in the Dictionary to the Uniform Civil Procedure Rules 2005 (NSW) (“The UCPR”) as including a statement of claim, defence, reply and any subsequent pleading, and as not including a summons or notice of motion. In this article, we refer to pleadings as to any originating process, however, we focus on a statement of claim.

History

Originally in ancient England, the parties simply verbally presented themselves to a tribunal and explained their dispute. The aim of the oral pleadings exercise was to narrow the issues in dispute However, the great common-law courts of the king demanded more formality. From the end of the fourteenth to the middle of the sixteenth century, the royal courts began more and more to demand written pleadings that set out a party's position in a case. A claim or defence that did not exactly fit the requirements of the common-law Forms of Action was thrown out with no opportunity to amend it and come back into court.

Equity courts, administered by the Lord Chancellor, evolved out of petitions to the monarch to provide justice where the common law could not. Their pleading system was far less structured. Bills in equity looked more like stories, factual in nature. However, by the 19th century, equity too had become more structured.

Common-law pleading endured in England, and the United States, Australia and Canada for several centuries. There were a series of changes in the 19th century, culminating in the 1873 and 1875 Judicature Acts. These Acts consolidated law and equity into a single Supreme Court of Judicature with simplified pleading rules, and the old forms of action were effectively abolished. The new rules provided that ‘[e]very pleading shall contain as concisely as may be a statement of the material facts on which the party pleading relies, but not the evidence by which they are to be proved’.

In Australia, a modified version of the pleading system created by the Judicature Acts is still generally in force. Pleadings are intended to formulate the issues between the parties, to give notice of the case that will be put at trial, and to bind the parties to those issues.

In England, on the other hand, in 1880, a rule was introduced that, ‘as a general rule, the questions in controversy between litigants may be ascertained without pleadings.’ Pleadings were to be delivered only with leave of the court, but, in practice, leave to deliver written pleadings was almost always asked for and granted.  This rule was revoked in 1933.

Pleading in England and Wales is today covered by the Civil Procedure Rules. These rules set a high priority on attempts to resolve all matters able to be resolved by the parties, prior to hearing or trial. The pleadings are contained in various Statements of Case which are usually the Claim and any associated Particulars of Claim, the Defence, and an optional reply to the Defence.

In the US, at the beginning in 1848, some states replaced it by law with a new system called Code Pleading. The statutes enacting code pleading abolished the old forms of action and set out a procedure that required the plaintiff simply to state in a complaint facts that warranted legal relief. A defendant was authorized to resist the plaintiff's demand by denying the truth of the facts in the complaint or by stating new facts that defeated them.  In 1938, federal courts began using a modern system of pleading set out in the federal Rules of Civil Procedure. This system has been so effective that many states have enacted substantially the same rules of pleading. A pleading by a plaintiff or defendant under these rules is intended simply to give the other party adequate notice of the claim or defence.

Commencing Proceedings - Pleadings in NSW, Australia

Under the UCPR, proceedings are usually commenced by statement of claim or summons with some exceptions. A statement of claim or summons must be drafted using the prescribed form.

A summons only sets out the relief sought, whereas a statement of claim sets out or “pleads” the material facts forming the basis of the relief sought, as well as the relief. In some matters, the issues can readily be identified from a summons and supporting affidavit. In other matters, the requirements of procedural fairness, as well as the need for the real issues to be elucidated, dictate the use of a statement of claim.

Any proceedings involving a likely extensive contest as to facts (including terms of an agreement and their breach) should be commenced by way of statement of claim. In particular r 6.3 UCPR provides that a statement of claim should be used for claims seeking relief for debts and other liquidated claims, an alleged tort and fraud, for damages for breach of duty. in relation to trusts, other than express trusts wholly in writing, for possession of land and other.

R 6.4 UCPR sets out the circumstances where proceedings must be initiated by a summons for example, a summons should be used for proceedings where there is no defendant; proceedings on appeal or application for leave to appeal (other than proceedings assigned to the Court of Appeal); proceedings for preliminary discovery or inspection made under Part 5 of the UCPR; or proceedings in relation to a stated case.

In the Federal Court, proceedings are usually commenced by application, which is like a summons, supported by either an affidavit or statement of claim. The nature of the case and the material facts on which it is based must be set out. A statement of claim must be filed when the claim alleges fraud, misrepresentation, breach of trust, wilful default or undue influence.

Purpose of Pleadings 

Pleadings have the issues and notice purposes.

The issues purpose means that it is the function of pleadings to identify the issues, the resolution of which will determine the outcome of the proceedings.

The notice purpose means that it is the function of pleadings, including to apprise the opposite party of the case to be met[1].

RULES ABOUT STATEMENT OF CLAIM, DEFENCE, COUNTERCLAIM AND REPLIES

Pleadings to be Divided in Paragraphs, to Contain Only Briefly Material Facts and Not Evidence; Matters Must Be Pleaded to Avoid  Surprise

There are set of rules which, when combined, raise many questions about drafting pleadings. These rules are as follows.

R14.6 UCPR states that pleadings are to be divided into paragraphs while similar provisions are contained in Supreme Court Rules (“SCR”) Part 15, rule 6; and District Court Rules (“DRC”) Part 9, rule 2.  

R 14.7 UCPR provides that pleadings are to contain facts, not evidence. Similar rules are provided by SCR Part 15, rule 7; DCR Part 9, rule 3). 

R 14.8 UCPR state that a pleading must be as brief as the nature of the case allows with similar rules contained in SCR Part 15, rule 8; DCR Part 9, rule 4. R14.14 UCPR, SCR Part 15, rule 13 and DCR Part 9, rule 9 state that parties must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. Moreover, in a defence or subsequent pleading, a party must plead specifically any matter: that the party alleges makes any claim, defence or other case of the opposite party not maintainable.  Matters which must be pleaded (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. The UCPR, SCR and DCR also require a defendant who relies on contributory negligence to plead specifically the contributory negligence.

Briefly, a pleader is required to plead all material facts he or she is entitled to prove at the trial, in as brief manner as nature of case allows, and all matters which may take the adversary by surprise.

For a drafter of pleadings there is a task, sometimes called science of pleadings, to make great many fine determinations to strike balance between requirements for brevity of pleadings and to plead all material facts, pleading some matters of law, and to plead all matters which may take an adversary by surprise. What are additional matters he or she should consider in making these determinations?

Pleading Material Facts

All facts on which the cause of action or defence depend are material[2].  Whether the material facts have been pleaded can generally be determined by asking if the claim or defence would be made out if all the pleaded allegations were admitted[3]. However, the requirement of materiality is not confined to it. Allegations may be material even though they are not essential to the cause of action but a pleader is entitled to prove at the trial.  In Millington v Loring (1880) 6 QBD 190 the paragraph four of the statement of claim was struck out by the court. It stated: “That the plaintiff relying upon the agreement (to marry her – SP) permitted the defendant to debauch and carnally know her, whereby the defendant infected the plaintiff with a venereal disease.” On appeal, Lord Selborne, LC, stated:

If those words, “material facts,” are to be confined to matters which are material to the cause of action, that is to say, facts which must be proved in order to establish the existence of the cause of action, then no doubt the facts in this paragraph were not properly pleaded. But in my opinion those words are not so confined, and must be taken to include any facts which the party pleading is entitled to prove at the trial.

The New South Wales Court of Appeal has stated in Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 at 142-143 that:

"(1) "Material" means material to the claim, that is, to the cause or causes of action which are relied on.

(2) The requirement 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 fact, that is, how they are material to a cause of action."

If a fact is material it must be pleaded. It is not sufficient merely to refer to it in the particulars. In H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181; 40 FLR 242, pleadings did not contain the facts necessary to support the allegations that the defendants were bound to abide by the relevant Act, neither the pleadings contained allegations of any material facts which would constitute a contravention of s 52 of the Act.   These were contained in the particulars. The Court held that particulars are not statements of material facts; they serve a different purpose and cannot cure defects in the statement of claim.  

In a case that material fact which can be proven at the trial but is not crucial for the cause of action is not pleaded in the pleadings, however is included in particulars, this would not make the pleadings being struck out but the consequence would be that there is no requirement for the opposing party to plead to it[4].

A statement of claim contains both a statement of material facts, and a statement of the relief which is sought. It is a part of the obligation to plead all material facts that the pleading should allege the facts which show there has been a legal wrong, and allege any facts which justify the grant of the particular remedy which is claimed. For instance, if a pleader asks for special rate of interest the debtor agreed to, he or she needs to plead in the body of the pleading the contractual term where the debtor agreed to it and in the prayers for relief a claim for interest at that same rate.

The rules of pleadings imply distinctions between facts, law and evidence which is more easily stated than consistently and properly applied[5].  The requirement that the pleader must state facts means that should not assert conclusions of law, arguments, reasons, theories, conclusions or mere matters of prediction.

Furthermore, the case law developed some detailed rules.

Matters that go to aggravation of damages or, in the case of a defence, mitigation of damages, are material and should be pleaded[6].

In negligence allegations, it is not sufficient for the plaintiff to plead general allegations of lack of care[7]. He or she must provide all facts on which this allegation is based.

Matters of confession and avoidance of an expected defence are not material and should be left to the plaintiff's reply[8].

Matters that go merely to the question of costs are not material[9].

There is no obligation on the defendant to point out a defect in the case and that there is a gap in the case. There is an obligation to point out some additional matter of fact or law which could defeat the plaintiffs case and which if not pointed out might surprise the plaintiff.  

By way of example when the pleadings were struck out as it was in breach of requirement to plead material fact we refer to the case East West Airlines (Operations) Ltd v Commonwealth (1983) 49 ALR 323 It was found that the paragraphs of the statement of claim relating to the notice which had been issued was unnecessary, the paragraph relating to a similar notice in the event of revocation of the approval was embarrassing as it was based on speculation; it was not an allegation capable of admission or denial by the defendants; the paragraphs relating to determinations of the Committee were unnecessary as they provided no foundation for any claim for relief;  and the statement of claim generally pleaded immaterial facts which were merely evidentiary and/or irrelevant.  

In that case, it was said that the statement of claim alleges, partly by way of history and partly by way of prediction, how the operation of the Act has affected, or may affect, the plaintiff in particular instances, to establish the invalidity of the Act reason of s 92 of the Constitution.   Such alleged invalidity would allow the plaintiff any claim for relief.   The court stated that this was not the way such a cause of action should be pleaded in accordance with the decision Associated Stevedores Pty Ltd v Tasmania (1961) 35 ALJR 71 which stated:

So far as the contravention of s 92 is concerned I can see no reason why the statement of claim should not simply (1) allege with appropriate particulars that the plaintiffs are engaged in interstate trade or commerce; (2) allege with appropriate particulars that the effect of the Tasmanian Act is to interfere with the freedom of that trade and commerce; and (3) claim relief by way of declaration accordingly.  

The court concluded that the pleadings contained immaterial facts which at best are merely evidentiary and at worst are not relevant at all. The fair trial of the action would be delayed if the defendants were required to plead to these allegations and if other interlocutory procedures could be directed to them.

Another example is often cited case dealing with a matter of pleadings from the English Court of Appeal Philipps v Philipps (1878) 4 QBD 127. The plaintiff alleged that he had a right of possession of land because he was a descendant of Thomas Philipps and because of documents and deeds he believed the defendants may have in their possession. The Court said as far as the first allegations was concerned, that there were the only two statements with respect to Sir Thomas Philipps and it was clear that no title would be shewn, because these would not establish his ownership, even if proven. The Court stated: “so that those two allegations taken together clearly would be insufficient and demurrable.

The second allegation was that by virtue of certain deeds, assurances, wills, and documents in the possession and control of the defendants, the plaintiff was entitled to the possession of the premises and hereditaments as such heir male of Sir Thomas Philipps. That is a statement which, if true, shews a good title in the plaintiff, because it alleges that as heir to somebody he is entitled to possession: if he is entitled to possession he is entitled to maintain this action, and therefore the defendants cannot demur. But the allegation is not an allegation of one fact, it is an allegation of, for aught I know, fifty facts, because the assurances, and deeds, and documents that are mentioned may be so many in number: and it is an allegation of all the legal consequences that follow from those facts. Then it is argued, on behalf of the plaintiff, the meaning of a deed is always a fact. It is a novelty to me. I never heard that the effect of written instruments was a matter of fact. It is not a matter of fact; the proper course for the plaintiff to have adopted would have been to set forth the purport of the document, and then the document could be looked at and the question decided….

It would have stated the making of the deed as a fact, but instead of stating what was in the deed, it would have stated as a fact a conclusion from it, which ought to have been established by shewing the contents of the deed…

What is the remedy for the plaintiff's difficulty? To my mind an obvious one. Instead of driving the defendants to ask for particulars of the statement, which I think is a most objectionable proceeding, what the plaintiff ought to have done, on this objection being made, would have been to produce an affidavit shewing how matters stood, and asking that the summons to amend these pleadings might be adjourned until he got discovery; and then to make an independent application for discovery…

It has happened to me over and over again when such an application has been made to me, at least in an analogous case where the application is for further and better particulars of demand, and the plaintiff says that he cannot give them, because the materials for giving them are in the possession of the defendants; I have always said a plaintiff cannot be permitted to go to trial and say that he was entitled to a sum of money, but that he cannot give the defendant any particulars of it. Such a case has constantly occurred, and what I have always said is this, the plaintiff must give the particulars; if he has an affidavit that he cannot give them I will adjourn this summons for better particulars and he may make an application for discovery.

The learned judge also said that:

The object of the rules is threefold. It is that the plaintiff may state what his case is for the information of the defendant, and that the plaintiff may be tied down to it and not spring a new case on the defendant; secondly, that the defendant may be at liberty to say, that the statement is not sufficient in point of law, and to raise the point on demurrer; and thirdly, that the defendant, instead of being driven to deny everything by an ambiguous and uncertain statement involving conclusions of law as well as actual facts, and so going down to try an expensive issue, may be at liberty to single out any one statement, and to answer it. That cannot be done here.

One other remark I have to make is this. It is manifest on this statement, and not a word has been said in justification of it, that the plaintiff in the alternative alleges that he is entitled to the lands under various Crown grants. What possible justifications there for that? Why is not the Crown grant to be stated? Is there any difficulty in the way of stating it? The conclusion I draw from the whole of this pleading is that it is a sort of fishing statement of claim, and that the plaintiff might really almost as well have made his statement of claim in this shape: “I am entitled to the possession of these premises, and I call on you, the defendants, to inform me what answer you can make”.

His Honour explained the rule continuing:

It was purposely not put: “the facts which will be necessary to support the cause of action;” for the party might not be able to state such facts; as, for instance, he might only know such facts as would render his case demurrable, and could only state facts which would not be sufficient to maintain the cause of action; but he states the facts on which he intends to rely at the trial.

A pleading, petition, or the like, is said to be demurrable when it does not state such facts as support the claim, prayer, or defense put forward.

If all he intended to rely upon was the fact of this remote ancestor being seised in 1513, and the fact that he was his descendant, if that was all he could rely upon, he might plead those facts; but if that was all he could plead it seems to me that the case would be demurrable. It would not be embarrassing but it would be demurrable. But it is obvious that he has other facts upon which he wants to rely. He may wish to rely first of all upon some settlement which may have been made by that ancestor, or on a settlement made by some other ancestor. If he wants to rely on that settlement he ought to give an account of the deed; he ought to state by whom that deed was made, and under rule 24 of Order XIX. to give the effect of that deed; or if he gives some account of the deed, and makes a statement that he cannot give the effect of the deed because it is in the possession of the other side, that might be a statement which he might have made in the old system of pleading to excuse profert of the deed; that would excuse giving so particular an account as he might have otherwise had to give; but it does not excuse him from giving some account of the deed on which he means to rely.

Finally, the learned judge struck out the pleadings.

The plaintiff has made a general statement which prevents the defendants from demurring, and at the same time the omission of the facts prevents the defendants from knowing what the plaintiff's case is, and therefore prevents them from knowing how to meet it. I think that the omission of the facts and the insertion of the general statement make this pleading embarrassing, and on this ground this pleading ought to be struck out.

The plaintiff says that, by virtue of certain deeds in the possession and control of the defendants, he is entitled to the possession of the premises: he has no right to put those words in his statement of claim. That is not a fact material to his title. It is not a fact that is traversable. If the defendants' counsel were to say: “The said deed and documents were not in the possession and control of the defendants,” he would plead a bad stalemate of defence obviously, therefore those words ought never to have been put in, and ought, in our consideration of the case, to be disregarded.

The Effect, not the Content, of Statements and Documents Should be Pleaded

R14.9 UCPR also provided at SCR Part 15, rule 9; DCR Part 9, rule 5 states that If any documents or spoken words are referred to in a pleading the effect of the document or spoken words must, so far as material, be stated, and the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material.

This rule is an adjunct to the requirement to plead material facts and is consistent with the distinction between material facts and evidence.  Even before this rule, unless the effect of a document was set out in the pleading, it could not be read on a motion to strike out the statement of claim[10].

Brevity

As far as brevity is concerned, pleadings ought to be precise and concise, clear and definite[11]. A pleading that fails to comply with this requirement may be struck out. In Hill v Hart-Davis (1884) 26 Ch D 470 the plaintiff, in reply to the order for production of documents, put in an affidavit which was of great length whereby 4216 letters were set out separately by their dates and names of the writers and recipients, and there was a great number of receipts for sick allowances from the various branches of the society. They charged the Defendant £19 2s. for the copy of the affidavit. The Court ordered the affidavit to be taken off the file as being oppressive and irrelevant, and by its prolixity an abuse of the practice of the Court, and ordered that the Plaintiffs should pay the costs occasioned by it, including the Defendant's payment of £19 2s., and the costs of the application. The Court reasoned that even if the documents were relevant, they could have been set out in a way which could not have been oppressive, that there was a prolixity in the affidavit “of which no account can be given except a desire to cause vexation and costs to the Defendant.”

On the other hand, the circumstance that the material facts are stated at great length will not ordinarily justify the striking out of the statement of claim. Similarly, it may be also correct to say that a statement of claim should not be struck out merely because it includes allegations of non-material facts, unless the pleading is such as to embarrass the defendant in being able to appreciate the precise nature of the plaintiff's case[12].

Specific Matters to be Pleaded

In addition to obligation to plead all material facts on which the cause of action depends, there is a requirement for specific pleading, particularly of any matters that might take the other party by surprise. The purpose of the specific pleading requirement is to ensure that material facts are stated in such a way that each opposing party has a proper opportunity to fully appreciate their materiality to the cause of action[13]. The purpose of the requirement is to give each party proper opportunity to prepare and present its case[14].  It serves additional purpose to preclude parties from merely traversing the other's allegations where the party's true case involves either some positive assertion of fact, some special claim or a claim that the other party's case is bad in law[15].  Allsop J in White v Overland [2001] at [4] said:

where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party... ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said.

In Jackamarra v Krakouer (1998) 195 CLR 516 at 526-7; 153 ALR 276 at 283-4; [1998] HCA 27[16] per Gummow and Hayne JJ, it was stated:

Representatives do not owe duties to the other side's client. They owe duties to their own client. But…(i)n the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties...

In Ingot Capital Investments Pty, Ltd v Macquarie Equity Capital Market Ltd (2008) 252 ALR 659; 68 ACSR 595; [2008] NSWCA 206; at [417]- [421] and [435]- [443], appellants were required to plead specifically any part of their case that relied on lack of integrity and materiality of misleading or deceptive conduct claimed.

The similar position is adopted for fraud allegations. In Re Rica Gold Washing Co (1879) 11 Ch D 36 it was held that the petition contained vague allegations of fraud while it had to contain the facts which constitute the fraud. It was said:

You are not entitled on a petition any more than in an action to say to the other side, “You have defrauded me; you have obtained my money by fraud.” You must state the facts which you say amount to a fraud, so that the other party may know what he has to meet. I agree that it is not necessary to state the evidence which shews the fraud, but you must state the facts which constitute the fraud…. It is not sufficient to say that the prospectus contained various untrue, misleading, and deceptive statements. The Petitioner ought to say what they were, and state which of them were untrue…That is an allegation of insolvency, certainly of commercial insolvency, but there is nothing else in the petition to shew assets. There is nothing to shew that any one of these alleged frauds ended in abstracting moneys from the assets of the company.

For the purposes of this rule "fraud" includes, but is not confined to, allegations based on a cause of action in the tort of deceit. It includes a defendant's allegations that the plaintiff's claim is itself fraudulent because it involves allegations of fact that are known to be untrue. It extends to include a plaintiff's allegations of fraud made in response to a defence based upon the Limitation Act.

The requirement for specific pleading applies to allegations of fact relied on to establish common law or equitable estoppel[17]. Some kinds of estoppel operate in a way that they, in effect, preclude the determination of certain matters in the proceedings. Estoppels of these kinds include cause of action estoppel and issue estoppel. Where a party intends to rely on a prior judgment as giving rise to a cause of action estoppel, the judgment should be specifically pleaded[18].

R14.16 UCPR, SCR Part 15, rule 14 and DCR Part 9, rule 10 state that a defendant who relies on contributory negligence must plead specifically the contributory negligence.

R14.21 UCPR provides that a pleading with respect to a claim for relief under section 20(1) of the Property (Relationships) Act 1984 must plead specifically any contribution referred to in that subsection on which the plaintiff relies.

We refer to two cases by way of example when specific matters should be pleaded, Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] 1 Ch 250; [1979] 1 All ER 118 and Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44. In the latter case, the pleader  submitted that the amendment introduced for the first time an allegation that Aztec “was bound by law” to exercise certain rights, without specifying the nature of the obligation or properly specifying its basis, in circumstances where there were many conceivable alternatives, including knowing participation in breach of trust, intent of joint venturers, equitable inhibition and contract.

The court stated the case raised a question of some general importance, namely the extent to which a cause of action must be spelt out in District Court pleadings. It might have appeared that these rules do not require that causes of action be stated in pleadings: the requirement is to have a statement of material facts, and indeed to have only such a statement. The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract. 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 a cause of action. Where there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specified causes of action. The Court held that it was clear Rules provide that the statement of material facts should be so presented as to amount also to a statement of a cause or causes of action. That is, the statement should convey just what cause or causes of action are being relied on. The statement should also convey exactly what relief is claimed in respect of each cause of action if the evidence does not go that far, The Court granted leave to appeal from a decision of the primary judge not to strike off the pleadings, allowed the appeal and refused the amendment of the pleadings.

Pleadings may Raise Points of Law

If the pleading raises a properly arguable question of law it will not be struck out[19]. If a pleader chooses to plead a reason a law is invalid, the pleading of the reason is not necessarily to be struck out even if the reason does not appear to be sound[20]. The test whether rising a point of law in a pleading is permitted is whether it causes prejudice to the fair trial of the action or is causes embarrassment to the defendant[21].

If a question of law is raised, it should be taken clearly and explicitly[22]. Where all the facts pleaded are admitted and the only issue is a point of law, no evidence will be admitted at the trial[23].

However, there is no obligation to plead law except to show connection between the facts pleaded and cause of action and to avoid surprise, as discussed above.

In Ashrafi Persian Trading Co Pty Ltd (t/as Roslyn Gardens Motor Inn) v Ashrafinaia (2002) Aust Torts Reports ¶81-636; [2001] NSWCA 243, the High Court stated that the pleading did not in terms allege any duty to take reasonable care.  The High Court stated that whether a duty to take reasonable care exists is a question of law. There is no duty to plead matters of law unless failure to do so could cause surprise, although a party is able to raise a point of law in pleading. The court found there was surprise to the parties in this case as from pleaded facts and particulars of negligence could be gleaned an intention on the part of the pleader to contend that he had to warn, instruct, fence, security screen or do other precautionary measures for safety of the pleader.  Deficiency was found to be only formal not substantive.

Furthermore, the distinction between fact and law is sometimes not easily discernible and sometimes a question may be one of mixed fact and law[24]. Drawing inferences from primary facts to reach findings or conclusion of fact is a question of fact[25]. On the other hand, the question whether there is sufficient evidence to support the inferences I one of law[26].

When legal norms are applied to facts to reach of conclusion of law, this may be either a question of fact or law, dependable on circumstances and the approach taken by the court. When facts are proven and there is a question whether these facts bring the case within the provision of statue then this is the question of law[27]. The meaning of technical legal terms is a question of law. Moreover, in Sydney City Council v DellÓro (1974) 132 CLR97; 4 ALR 417[28] it was found that in an action for negligence, the existence and standard of duty of care and remoteness of damages are questions of law[29].

Pleadings Should be Consistent 

This obligation is imposed by r14.18 UCPR. Parties cannot properly plead inconsistent factual allegations. In Ritchie's Uniform Civil Procedure NSW – Online, an example is put when a reply alleging waiver of performance of conditions precedent is an impermissible departure from a statement of claim that alleges fulfillment of the condition[30].

It is further stated that when there is a joinder of parties making alternative, but not inconsistent, allegations about them is entirely proper where there is doubt as to which of them is entitled to, or liable for, the relief claimed[31].

Furthermore, a plaintiff[32] may plead factual allegations in the alternative and a defendant[33] may rely on alternative grounds of defence, even though the alternative allegations would otherwise be inconsistent. For example, in the case of a claim for breach of contract, a defendant could properly both deny that there was an agreement and say that if the court found that there was one then the plaintiff was itself in breach and liable to pay damages to the defendant[34].

Where the facts to support alternative allegations are essentially different, the facts should be specifically pleaded[35].

In deciding the question whether inconsistent alternative allegations are properly made, the primary question is whether the alternative allegations cause embarrassment or inconvenience[36].

Moreover, a pleading that contains alternative submissions about the legal effect of previously pleaded facts does not involve relevant inconsistency. In Re Vandervell's Trusts (No 2) [1974] Ch 269 it was said that the primary judge decided the purpose of pleadings is to define the case which the parties put forward. The defendants have not pleaded that there was a trust constituted by Vandervell or that there was a general power to hold for trust purposes… evidence goes nowhere near as far as that the defendants should hold the shares “on such trusts as might thereafter be declared.”. That is not open on the pleadings. The court cannot make a finding not alleged on the pleadings, or in the notice of appeal and not justified by the evidence. Mr. Balcombe for the executors stressed that the points taken by Mr. Mills were not covered by the pleadings.

However, it was decided on appeal:

I began to think we were back in the bad old days before the Common Law Procedure Acts 1852 and 1854, when pleadings had to state the legal result; and a case could be lost by the omission of a single averment: see Bullen and Leake's Precedents of Pleadings, 3rd ed. (1868), p. 147. All that has been long swept away. It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. The pleadings in this case contained all the material facts. It does appear that Mr. Mills put the case before us differently from the way in which it was put before the judge: but this did not entail any difference in the facts, only a difference in stating the legal consequences. So it was quite open to him.

A pleading will be embarrassing if it relies on inconsistent allegations and one of them must be false to the knowledge of the pleader[37].

An acceptable format for an affidavit verifying alternative allegations is, "Should it be held that... then the defendant says..."[38]. Whenever alternative cases are alleged, the facts relating to those cases should be stated separately, and should not be mixed together. 

Pleadings Should Not Embarrass Adversary

A pleading may be struck out if it is embarrassing. Similarly, to the rule about surprise, just as the rule about surprise is concerned with the effect that a pleading has on an adversary.

The word embarrassment is not used in common sense. In the sense relevant to pleading, embarrassment is the situation which a defendant is in when it is under an obligation under the court rules to file a defence, but cannot do so because of deficiencies in the statement of claim, or when the pleading does not make clear the case which the opposite party must be ready to meet.

There are many examples when pleadings were struck out,  when leaves the defendant in a situation of not knowing what evidence he ought to file in order to meet it, or if it contains statements which are irrelevant to the relief sought[39]; when its language is so general that it is not clear what is being alleged;[40] when it leaves obscure the facts[41], is incomplete[42], uses inconsistent terminology[43], when it makes allegations against several defendants, and it is not clear what allegation is made against which defendant[44], when a duty of some particular legal type is alleged to exist without a statement of the facts by virtue of which it exists[45], when it anticipates defence[46],  when it is not capable of admission or denial by the defendants. is "poorly expressed and ... confusing", or "susceptible to various meanings"[47].

When there is a pleading which is partly good and partly bad, if a fair trial based on the statement of claim would be impossible, the whole of the statement of claim maybe struck out.

Additional Rules about Pleadings

R14.13 UCPR, SCR Part 15, rule 12A and LCR Part 5, rule 1 state that pleading is not to claim an amount for unliquidated damages except in the Local Court for specific cases mentioned in the Rule.

R14.12. UCPR provides that if the plaintiff claims money payable by the defendant to the plaintiff for eight listed types of matters, it is sufficient to plead the facts concerned in short form by using the form of words set out in the Rule and using the approved form.

R14.15 UCPR and SCR Part 15, rule 15 stipulates the content of pleadings concerning possession of land.

R14.17 UCPR, SCR Part 15, rule 16 and DCR Part 9, rule 11, state that new matter may be raised in a pleading. The cause of action relied upon must be complete when the proceedings are commenced and this rule does not apply to a cause of action arising subsequently to the commencement of a proceeding[48].  It simply allows reliance on events related to the cause of action which occur after the commencement of proceedings.

R14.20 UCPR and SCR Part 15, rule 27 provide that a pleading may not plead the general issue. In the historic contest, under the general issue, a defendant could make a general denial of the whole of the plaintiff's case which cannot be done today[49].

Practice Note of District Court NSW (Civil) No. 1 requires the plaintiff when commencing proceedings in the District Court for unliquidated that the preparation for trial must be well advanced before filing the statement of claim. It also requires the plaintiff that on serving the statement of claim also serve proposed consent orders for the preparation of the case, notification of the date and time of the pre-trial conference and any particulars of the claim to be supplied by the time of the pre-trial conference.

Conclusion

While the USA moved from requirements of pleadings as set in the 1873 and 1875 Judicature Acts, Australia, in essence, still complies with these.

The US particularly adopted institutionalised systems of case management. Case management philosophy encourages judges to use supervision, communication, attitude adjustment, deadlines, and sanctions to achieve the goals of narrowing points of dispute and disclosure that procedural rules have traditionally assigned to pleadings and discovery. The reason has been that parties usually had problems to cooperatively identify the issues of dispute and limit discovery to the optimal amount of information exchange so intervention of judges in these matters seems justifiable.

In Australia, superior courts have rules allowing for pre-trial party access to documents and information held by an adversary and sometimes access to documents before proceedings have been commenced. Therefore, pleadings are not the only vehicle that assists parties in evaluating the strengths and weaknesses of their cases.

In Australia, the Federal Court of Australia has abolished traditional pleadings practices for cases in its ‘Fast Track’ which is like the ‘Rocket Docket’ case management approach used in some US courts. These systems set very short deadlines for pre-trial activities. It applies for commercial disputes whose trials will not exceed five days. This system replaces traditional pleadings with Fast Track Statements, Responses and Cross-Claims. These documents must avoid undue formality, describe the nature of the dispute, and identify the factual and legal issues involved and the relief claimed. Responses must clearly state the factual and legal substance of the respondent’s case. In result, it seems that the application of these rules has reduced time-consuming and expensive interlocutory pleadings disputes.

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[1] r 15.1, UCPR provides that a pleading must give such of any claim, defence or other matter pleaded as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. Phillips v Phillips (1878) 4 QBD 127 at 134; Re Morgan (1887) 35 Ch D 492; Delfino v Trevis (No 1) [1963] NSWR 191 at 196

[2] Darbyshire v Leigh [1896] 1 QB 554.

[3] Ritz Hotel Ltd v Charles of the Ritz Ltd (No 20) (1988) 14 NSWLR 124 at 126.

[4] Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109.)

[5] Re Dependable Upholstery Ltd [1936] 3 All ER 741.

[6] Plato Films Ltd v Speidel [1961] AC 1090; [1961] 1 All ER 876; Goody v Odhams Press Ltd [1967] 1 QB 333;  Wilson v Dun's Gazette Ltd [1912] VLR 342.

[7] Ashrafi Persian Trading Co Pty Ltd (t/as Roslyn Gardens Motor Inn) v Ashrafinaia (2002) Aust Torts Reports ¶81-636; [2001] NSWCA 243.

[8] Hall v Eve (1876) 4 Ch D 341 at 345, 348; Bullen and Leake and Jacob's Precedent of Pleadings 12th ed, 1975, Sweet and Maxwell, p 71

[10] Howard v Hill [1887] WN 193; (1887) 4 TLR 20; Williamson v London & North Western Railway Co (1879) 12 Ch D 787.

[11] Re Parton; Townsend v Parton (1882) 30 WR 287.

[12] Davy v Garrett (1877) 7 Ch D 473 at 488.

[13] Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44.

[14] Bright v Sampson & Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346; Re Robinson's Settlement; Gant v Hobbs [1912] 1 Ch 717 at 728.

[15] Attorney-General v Lord Mayor of Sheffield (1912) 106 LT 367: Zisis v Knighton [2008] NSWCA 42; at [48]- [50] where asserted lack of jurisdiction not raised as an issue until final addresses.

[16] Approved in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; 34

MVR 495; [2001] NSWCA 346; and Malone v New South Wales National Parks and Wildlife

Service [2001] NSWCA 345.

[17] Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563 at 571; Commissioner for Railways v Bielewicz [1963]

NSWR 482 at 486; [1963] SR (NSW) 466 at 468.

[18] Withers v Greenwood (1878) 4 VLR (L) 491 ;Houstoun v Marquis of Sligo (1885) 29 Ch D 448; Edevain v Cohen (1889) 43 Ch D 187.

[19] Tomkinson v South Eastern Railway Co (No 2) (1887) 57 LT 358.

[20] Hodges v New South Wales (1988) 77 ALR 1; 62 ALJR 190.

[21] Ibid.

[22] Stokes v Grant (1878) 4 CPD 25; Burrows v Rhodes [1899] 1 QB 816 at 818.

[23] Pioneer Plastic Containers Ltd v Cmr of Customs and Excise [1967] Ch 597; [1967] 1 All ER 1053.

[24] Da Costa v R (1968) 188 CLR 186; 42 ALJR 184.

[25] British Launderers ’Research Association v Borough of Nednon Rating Authority [1949] 1 KB 462.

[26] Hope v Bathurst City Council (1980) 144 CLR1; 29ALR 577.

[27] Commission or Taxation v Miller (1846) 73 CLR93; 20 ALJ 285.

[28] As it was in Qualcast v Haynes [1959] C743.

[29] Robert Sheldon SC, “Point of law” on WordPress site.

[30] White v Derwent & Tamar Insurance Co (1888) 14 VLR 642; but see Davis v Dougall (1889) 15 VLR

424 at 427; Spicers and Detmold Ltd v Australian Automatic Cigarette Paper Co Pty Ltd [1942] VLR 97

[31] Qantas Airways Ltd v AF Liddle Pty Ltd [1981] 2 NSWLR 34; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 523; 139 ALR 193.

[32] Re Morgan (1887) 35 Ch D 492; Re Smith (1884) 9 PD 68; Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 at 308.

[33] Re Morgan (1887) 35 Ch D 492; Coote v Ford [1899] 2 Ch 93 at 106; Moloney v Moloney (1903) 20

WN (NSW) 267; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 85; 93 ALR 435; Peninsula and Oriental SN Co v Britnell (1892) 18 VLR 580.

[34] Peninsula and Oriental SN Co v Britnell (1892) 18 VLR 580.

[35] Bohemia Crystal Pty Ltd v Swarovski 14 IPR 201; (1989) 95 FLR 46 at 60.

[36] Lamerand v Lamerand (No 2) [1962] NSWR 248; (1961) 79 WN (NSW) 389; Norman v Corrigan (1916) 16 SR (NSW) 225.

[37] Brailsford v Tobie (1889) 10 ALT 194; Issitch v Worrell (2000) 172 ALR 586 at [32].

[38] Fenton v Fenton [1966]2 NSWR 605; (1966) 85 WN (Pt 1) (NSW) 430.

[39] Davy v Garrett (1877) 7 Ch D 473 at 483, 486, 488; In re W R Wilcocks & Co Ltd [1974] 1 Ch 163 at 166-167.

[40] Tsatsoulis v Westpac Banking Corp [1999] NSWSC 193 (Rolfe J, 15 March 1999) at [85], [123].

[41] Agius v State of New South Wales (2002) Aust Torts Reports 81-656; [2001] NSWCA 371 at [35].

[42] Re Modular Furniture Pty Ltd (1981) 5 ACLR 463 at 466

[43] Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd (No.2) (1984) 9 ACLR 91 at 93

[44] State of South Australia v Peat Marwick Mitchell & Co (1997) 24 ACSR 231 at 255

[45] Charlton v Baber (2003) 47 ACSR 31 at [19]

[46] Church Of Scientology v Woodward (1980) 31 ALR 609 at 623

[47] McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at [102], [104] [255]

[48] Warner v Sampson [1959] 1 QB 297 at 321; [1959] 1 All ER 120.

[49] Moore Road Machinery (NSW) Pty Ltd v Sourry [1960] NSWR 227; (1960) 77 WN (NSW) 554.