Hearsay ... the Journal of the Bar Association of Queensland
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Issue 32
Seven Deadly Sins of Pleading Print E-mail

7_intro.jpgThe author, Anthony Morris QC, tells us that the following article is not intended as a pleading “primer” and that its purpose is "much less ambitious" -  to identify several of the more common pleading defects regularly encountered in this jurisdiction, in the hope of encouraging pleaders to avoid them.

Most of the defects identified in this article reflect practices which have been consciously adopted by some – or, in a few instances, many – members of the Bar, no doubt under the impression that they are good and useful practices. They aren’t.

Some of these practices appear to be of fairly recent origin; some have been regularly encountered throughout the present contributor’s experience of more than 25 years at the Queensland Bar. This just shows that durability is no indicator of viability.

One feels some sympathy with King Cnut in attempting to turn the tide against practices which have become entrenched. And one suspects that such an article as this is perhaps the least effective way of turning the tide, because the types of counsel who unthinkingly adopt such practices are often the types of counsel who don’t bother to read such articles.

But one remains optimistic that there are also members of our Bar – perhaps younger, more conscientious, more diligent, or simply more flexible than their curmudgeonly seniors – who have adopted these practices, not out of indolence or lassitude, but out of a sincere if misguided persuasion that such practices are time-honoured and venerable; who have seen these practices employed by barristers with threadbare gowns and yellowing wigs, and have made the (perfectly understandable) assumption that what is sauce for the goose is also sauce for the gosling.

To them, and indeed to any reader who has an open and inquiring mind, I invite consideration of the views expressed in this article. I accept that pleading is an art, rather than a science; that there is no single “right” way to plead, and no simple formula to ensure perfection in pleadings. I also respect the fact that some readers, having considered the views expressed in this article, will revert to drawing pleadings as they have always done, unconvinced by my arguments, and more comfortable with practices which they regard as “tried and true”.

Yet, even if this article achieves nothing more than to encourage its readers to think about the way that they plead – to reconsider and re-evaluate practices which have become second nature, and to contemplate whether there may possibly be a better way to do things – it will have surpassed the writer’s most ambitious expectations.

7_01.jpg(1) Pleading Conclusions

This is a practice which seems to have originated elsewhere than in Queensland1. It is spreading northwards into this State, as rapidly and inexorably as the southerly migration of the cane toad. It is equally unwelcome.

The practice consists of pleading a conclusion, in terms of the relevant legal or equitable principle, or the applicable statutory provision, and then setting out the material facts as (so-called) “particulars”. Hence, one will see a numbered paragraph in a pleading something like this:

##. The Defendant’s conduct in making the representation was misleading or deceptive, or likely to mislead or to deceive, in contravention of section 52 of the Trade Practices Act.

Particulars

  1. The representation was made by the Defendant in the course of trade or commerce.
  2. The representation was untrue, in that ... [etc.]

  3. The Plaintiff relied on the representation, in ... [etc.]


or this:

##. The Defendant breached its fiduciary duties to the Plaintiff.

Particulars

  1. The Defendant was the Plaintiff’s agent.

  2. The Defendant owed to the Plaintiff a fiduciary duty, as the Plaintiff’s agent, not to derive a secret profit from the transaction.

  3. The Defendant did derive a profit from the transaction, namely ... [etc.]

  4. That profit was not disclosed to the Plaintiff.



or this:

##. On [date], the Plaintiff and the Defendant contracted for the sale of the said business by the Defendant to the Plaintiff.

Particulars

1. The contract was partly written and partly oral.

2. Insofar as the contract was written, it consisted of:

a. a letter dated [date] from the Defendant to the Plaintiff;

b. a letter dated [date] from the Plaintiff to the Defendant; and

c. an instrument dated [date] entitled “Business Sale Contract”.

3. Insofar as the contract was oral, it consisted of ... [etc.]


The relevant rules of pleading are perfectly clear. Rule 149(1)(b) of the Queensland Uniform Civil Procedure Rules (“UCPR”) provides: “Each pleading must ... 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”. Sub-rule (2) provides that: “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” (emphasis added). Similarly, Order 11 rule 2 of the Federal Court Rules (“FCR”) provides: “Subject to these Rules ... a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved”.


If these requirements were not sufficiently unambiguous, their effect has been made clear in numerous decisions, of which it suffices to cite just one example. In Angelo Mitanis v. Pioneer Concrete (Vic) Pty Ltd2, Goldberg J. began by noting that “It has been established for many years that the most fundamental rule of pleading is the rule found in O.11 r.2: Bruce v. Odhams Press Limited3, Trade Practices Commission v. David Jones (Aust) Pty Ltd4; Trade Practices Commission v. Australian Iron & Steel Pty Ltd5.” His Honour then adopted the observations of Burchett J in Multigroup Distribution Services Pty Ltd v. TNT Australia Pty Ltd6, and of Neaves J in The Bega Co-operative Society Limited v. The Milk Authority of the Australian Capital Territory7, “that a statement of claim is to contain material facts being the facts necessary for the purpose of formulating a complete cause of action and that it is not sufficient simply to plead a conclusion drawn from unstated facts”. Goldberg J concluded:

The paragraphs attacked by the respondents ... repeat the vices and deficiencies which caused Neaves J to strike out the paragraphs in the statement of claim in Bega (supra). Not only do they not plead material facts, they do not even plead conclusions but rather utter the litany of the relevant statutory provisions. The particulars under para 51 do not save it. They do not save it as a matter of principle because a deficient pleading, namely one that does not plead any material facts cannot be saved by particulars: Trade Practices Commission v. David Jones (Aust) Pty Ltd8.

But the objections to this form of pleading do not begin – let alone end – with the complaint that it is formally defective. Such a pleading may be struck out, if the opposing party brings the appropriate application. But the opposing party may not do so: perhaps because this form of pleading has become sufficiently common that it is believed to be permissible; perhaps through fear that the court will view any strike-out application as “technical” or “pedantic” rather than meritorious; perhaps out of a (perfectly salutary) desire to avoid the costs of unnecessary interlocutory applications; or, just possibly, though a conscious decision to take advantage of the potential forensic benefits if the case proceeds to trial with the other side’s pleadings in a defective state.

What are the consequences if such a pleading is allowed to stand?

Neither under the UCPR nor under the FCR is there any requirement for the opposing party to respond to the particulars of a pleaded case, as opposed to the allegations contained in the numbered paragraphs of the pleading. In the first example given above, the opposing party would be perfectly entitled to deny the alleged infringement of section 52, without entering into the question whether the representation was made in the course of trade or commerce, whether it was true or false, or whether the other party relied on it. In the second example, the opposing party could deny the breach of fiduciary duty, without responding to the (so-called) “particulars” which identify the alleged source, content and breach of that duty.

A further related consequence is that, in Queensland courts, the party on whose behalf the pleading was filed will not enjoy the considerable benefits of the UCPR’s requirements regarding non-admissions and denials. Rules 166 and 167 apply only to an “allegation of fact” made by a party in a pleading; on any view, these provisions have no application where the relevant allegation is merely a legal conclusion. The opposing party may either ignore the paragraph which pleads the conclusion, or traverse it without providing “a direct explanation for the party’s belief that the allegation is untrue or can not be admitted”.

Similarly, under FCR Order 11 rules 13 and 18, it is only an "an allegation of fact in the previous pleading” which attracts the requirements for specific non-admissions or denials. This includes the requirement that “When a party ... denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively or generally, but must answer the point of substance”.

Moreover, when it comes to disclosure or discovery of documents, non-party disclosure or discovery, interrogatories (where allowed), and other interlocutory procedures, the issues are defined by the allegations of fact which are in issue on the pleadings. For example, UCPR rule 211(1)(b) mandates disclosure of “each document ... directly relevant to an allegation in issue in the pleadings”; UCPR rule 243(1)(b) limits non-party disclosure to documents which are “directly relevant” to an “allegation in issue in the pleadings”. Whilst particulars may limit the issues, they cannot expand them9.

The last point may not matter where the pleaded conclusion is denied or not admitted. But if the pleaded conclusion is admitted – without admitting, traversing, or otherwise responding to the (so-called) “particulars” – what are the “allegation[s] in issue in the pleadings”? In the third example given above, the opposing party would be entitled to admit that there was a contract, without responding to the “particulars” regarding the content of the contract. If the existence of the contract is admitted, there could be no “issue in the pleadings” for disclosure or discovery, whether inter partes or from a non-party, or for interrogation, even if the reality of the situation is that the opposing party disputes the oral component of the contract as particularised.

A good pleading is one which does not merely comply with the formal requirements of the rules of the relevant court. It is one which, in addition, takes full advantage of the forensic opportunities which the pleading process affords. A pleading which asserts legal conclusions, with the material facts set out as (so-called) “particulars”, may or may not be the subject of a successful strike-out application. But, on any view, it takes no advantage of the available forensic opportunities.

The best way to do that is to plead each material fact as a separate substantive allegation. Doing this is the only way to ensure that the other side’s pleading is fully responsive, including – under UCPR rule 166(4), where it applies – “a direct explanation for the party’s belief that the allegation is untrue or can not be admitted”. This should not only limit the case to factual issues which are genuinely in dispute; it also enlivens the right to claim costs under rule 167 in respect of unreasonable denials and non-admissions; and it clarifies the scope of disclosure or discovery, including non-party disclosure or discovery, interrogation, and other interlocutory processes. And, ultimately, it provides a clear road-map as to what must be proved by admissible evidence, and what need not be proved, in order to succeed at trial.

7_02.jpg(2) Use of the Subheading “Particulars”

Putting to one side the entirely unsustainable practice of pleading a conclusion with (so-called) “particulars” subjoined, one may question whether it is ever necessary or desirable to include the subheading “Particulars” in a pleading, rather than incorporating the relevant factual allegations within the numbered paragraphs of the pleading.

It has often been said that the dividing-line between “material allegations” and “particulars” may be blurred10 – indeed, in a practical sense, it is often imperceptible. Yet the distinction is of fundamental importance. It has been described as “the plainest and most fundamental of all the rules of pleading” that “all the material facts constituting the cause of action ought already to have been plainly stated in the pleading itself”11. It has also repeatedly been said that “it is simply not the function of particulars to take the place of necessary averments in the pleading of the material facts”12. In other words, if an essential element of the cause of action is put forward merely as a “particular”, rather than in the body of the pleading, the pleading is strictly liable to being struck out as failing to disclose a cause of action.

This much, however, may be said with absolute confidence: aside from cases of extreme prolixity – where a strike-out application is appropriate, whether the excessive details are placed in the body of the pleading or provided separately as “particulars” – no pleading has ever been struck out because the material facts were pleaded with greater particularity than may strictly be necessary. One would think, then, that the lesson is a simple one: to incorporate as much detail as possible in the numbered paragraphs of the pleading, rather than relegating potentially material factual allegations to the inferior status of “particulars”.

Once again, quite apart from providing prophylaxis against a possible strike-out application, this approach has significant tactical advantages. As previously mentioned, neither the UCPR nor the FCR require a response to the particulars of a pleaded case, as opposed to the allegations contained in the numbered paragraphs of the pleading. One might think that the advantages are self-evident, of compelling one’s opponent to provide a substantive response to every pleaded allegation – including, under UCPR rule 166(4), “a direct explanation for the party’s belief that the allegation is untrue or can not be admitted” – rather than giving one’s opponent carte blanche to pass over allegations which are both material and potentially contentious, by labelling them as mere “particulars”.

But, in negligence actions – to take just one example – it has become almost the invariable practice for the most important allegations to be presented as mere “particulars”. Thus, a statement of claim in a running-down case will often contain something like this:

##. The said collision was caused by the negligence of the Defendant. 

Particulars of Negligence

  1. Driving without due care and attention.

  2. Failing to keep any, or any proper, look-out.

  3. Driving at a speed which was excessive in the circumstances.

  4. Failing to stop, slow down or steer clear to avoid the collision.

This form of pleading – hallowed by custom “whereof the memory of man runneth not to the contrary”, and no doubt hard-wired into the word-processing precedents of the personal injuries bar – is admittedly unlikely to attract a successful strike-out application. But is it the best way to plead? Surely the advantages for the plaintiff are obvious if the same case were pleaded along these lines:

##. The said collision occurred in circumstances where:

(a) the lawful speed limit was 60 kilometres per hour;

(b) the road was wet following recent rainfall;

(c) the sun had set, there was no moonlight, and there was no artificial street-lighting;

(d) the tyres fitted to the Defendant’s vehicle were in a poor condition;

(e) the brakes fitted to the Defendant’s vehicle were in a poor condition; and

(f) it was, in the premises, reasonably foreseeable that the Defendant’s vehicle would require a longer than usual distance to be brought to a halt if the Defendant was required to stop suddenly.


##. In the premises, the speed at which the Defendant was driving was an excessive speed.

##. Further, the Defendant:

(a) was driving without the degree of care and attention that would have enabled the Defendant to foresee and avoid the collision;

(b) failed to keep a sufficient look-out to enable him to observe the Plaintiff’s approaching vehicle and thereby avoid the collision; and

(c) did not stop, slow down or steer clear to avoid the collision.

##. In the premises of [the last three] paragraphs, the collision was caused by the Defendant’s negligent driving.

It should not be imagined, however, that this point is relevant only in personal injuries cases. To take just one other example, one will often see a pleading in a contract case which reads something like this:

##. On or about [date], the Plaintiff agreed to sell to the Defendant, and the Defendant agreed to purchase from the Plaintiff, ten thousand (10,000) tonnes of wheat, grade A++, for delivery at Dalby in the State of Queensland, at a price of $375.00 per tonne.

Particulars

  1. At a meeting on [date] between Mr X on behalf of the Plaintiff and Mr Y on behalf of the Defendant, at the Plaintiff’s property near Dalby in the State of Queensland, Mr Y expressed interest in purchasing the whole of the wheat to be harvested from the Plaintiff’s property.

  2. Mr X stated that he expected the wheat harvest to be approximately 10,000 tonnes.

  3. Mr X also stated that he expected the harvested wheat to be grade A++ quality.

  4. Mr Y indicated that, if the wheat was grade A++ quality, he was willing to offer $375.00 per tonne.

  5. Mr X stated that $375.00 per tonne would be acceptable, if the Defendant took delivery in Dalby, but not if the Plaintiff had to pay freight to another location.

  6. Mr Y stated that he thought that would be okay, but would need to check with his regional manager.

  7. The following day, Mr Y telephoned Mr X and said that he had received approval from his regional manager to proceed as discussed.

  8. Subsequently, the Plaintiff received a letter dated [date] from the Defendant, confirming that the Defendant had agreed to purchase 10,000 tonnes of wheat, grade A++, for delivery at Dalby, at a price of $375.00 per tonne.

There is absolutely nothing wrong with a pleading in that form. But is it the best form of pleading for such a case? Depending on what the pleader knows of the case – which issues are likely to be uncontentious; which are likely to be genuinely disputed; and which may therefore be the subject of useful disclosure or discovery of documents – the pleader may well see advantages in getting the defendant to provide a “point by point” response to each of the individual steps which collectively mount up to the formation of a contractual agreement between the parties. This can be achieved by pleading precisely the same facts in a different form; for example:

##. On or about [date]:

(a) a meeting took place at the Plaintiff’s property near Dalby in the State of Queensland;

(b) Mr X attended and participated in that meeting on behalf of the Plaintiff; and

(c) Mr Y attended and participated in that meeting on behalf of the Defendant.

##. In the course of that meeting:

(a) Mr Y expressed interest in purchasing the whole of the wheat to be harvested from the Plaintiff’s property;

(b) Mr X stated that he expected the wheat harvest to be approximately 10,000 tonnes;

(c) Mr X also stated that he expected the harvested wheat to be grade A++ quality;

(d) Mr Y indicated that, if the wheat was grade A++ quality, he was willing to offer $375.00 per tonne;

(e) Mr X stated that $375.00 per tonne would be acceptable, if the Defendant took delivery in Dalby, but not if the Plaintiff had to pay freight to another location; and

(f) Mr Y stated that he thought that would be okay, but would need to check with his regional manager.

##. On the day following that meeting, namely [date]:

(a) Mr Y telephoned Mr X; and

(b) in the course of that telephone conversation, Mr Y said words to the effect that he had received approval from his regional manager to proceed as discussed.

##. On or about [date]:

(a) the Plaintiff received a letter dated [date] from the Defendant; and

(b) the said letter confirmed that the Defendant had agreed to purchase 10,000 tonnes of wheat, grade A++, for delivery at Dalby, at a price of $375.00 per tonne.

##. In the premises of [the last four] paragraphs, the Plaintiff agreed to sell to the Defendant, and the Defendant agreed to purchase from the Plaintiff, ten thousand (10,000) tonnes of wheat, grade A++, for delivery at Dalby in the State of Queensland, at a price of $375.00 per tonne

7_03.jpg

 

(3) “Admitting” Allegations which are not Pleaded

With increasing frequency, one sees pleadings (especially defences; sometimes also replies or replies and answers) which purport to “admit” something which is not actually pleaded. Sometimes the differences are slight and fairly subtle; sometimes they can be very fundamental.

For example, a statement of claim in a medical malpractice action might allege:

##. The Defendant is, and was at all times material to this proceeding:

(a) a duly qualified medical practitioner;

(b) a member of the Royal Australian College of Surgeons;

(c) a person lawfully entitled under Queensland law to practise as a specialist in the field of general surgery; and

(d) practising as a general surgeon from rooms at Wickham Terrace, Brisbane, in the State of Queensland.

In the defence, this might attract a response along the following lines:

##. As to paragraph ## of the statement of claim, the Defendant admits that he is, and was at all times material to this proceeding:

(a) a duly qualified medical practitioner;

(b) a fellow of the Royal Australasian College of Surgeons;

(c) a person lawfully entitled under Queensland law to practise as a specialist in the field of vascular surgery; and

(d) practising as a vascular surgeon from rooms at Ballow Chambers, 121 Wickham Terrace, Brisbane, in the State of Queensland.

As this example illustrates, the pleader’s intentions may be perfectly innocent – the pleader may understand (or believe that he or she understands) what the opposing party’s pleading was intended to say, and assume that he or she is actually being “helpful” by expressing the admissions in terms which are slightly different from the pleaded allegations to which they respond.

However, it is a bad pleading practice. An appropriate response might be, for example:

 ##. As to paragraph ## of the statement of claim, the Defendant:

(a) admit that he is, and was at all times material to this proceeding, a duly qualified medical practitioner;

(b) denies that he is, and was at all times material to this proceeding, a member of the Royal Australian College of Surgeons, on the grounds that:

(i) the correct name of the relevant body is the “Royal Australasian College of Surgeons”; and

(ii) he is, and was at all times material to this proceeding, a fellow (rather than a member) of that body;

(c) admits that he is, and was at all times material to this proceeding, a person lawfully entitled under Queensland law to practise as a specialist in the field of general surgery;

(d) further says that it is, and was at all times material to this proceeding, the case that:

(i) vascular surgery is and was recognised under Queensland law as a sub-specialty of general surgery; and

(ii) he is and was a person lawfully entitled under Queensland law to practise as a specialist in the sub-specialty of vascular surgery;

(e) admits that he is, and was at all times material to this proceeding, practising as a surgeon from rooms at Wickham Terrace, Brisbane, in the State of Queensland;

(f) denies that he does, or did at any material time, practise as a general surgeon, on the ground that he practises, and at all times material to this proceeding practised, exclusively as a vascular surgeon; and

(g) says that the full and correct address of the rooms from which he so practises, and at all times material to this proceeding so practised, is Ballow Chambers, 121 Wickham Terrace, Brisbane, in the State of Queensland.

Whilst this example illustrates a relatively benign instance of the problem, the same thing often happens where a pleader seeks to re-draft the allegations which are being admitted, either genuinely but mistakenly believing that the re-drafting reflects what the other side’s pleading was intended to say, or as a short-cut way of pleading a qualified admission.

Take, for example, a statement of claim in a defamation action which alleges:

##. On or about [date], the Defendant:

(a) published by means of a radio broadcast the words, “[The Plaintiff] is lower than a snake’s duodenum”; and

(b) thereby, in the natural and ordinary meaning of the words so published, meant and was understood to mean that the Plaintiff:

(i) is a contemptible person;

(ii) is deserving of scorn, mockery, ridicule and contempt; and

(iii) is a person whom all decent and right-thinking people ought to shun and avoid.

A bad defence might take this form:

##. As to paragraph ## of the statement of claim, the Defendant admits that, on or about [date], he:

(a) published by means of a radio broadcast the words, “If [the Plaintiff] has committed the conduct alleged against him in this morning’s newspaper, he is lower than a snake’s duodenum”; and

(b) thereby, in the natural and ordinary meaning of the words so published, meant and was understood to mean that, if the Plaintiff had in fact committed the conduct alleged against him in that morning’s newspaper, the Plaintiff:

(i) is a contemptible person;

(ii) is deserving of scorn, mockery, ridicule and contempt; and

(iii) is a person whom all decent and right-thinking people ought to shun and avoid.

On this occasion, the differences between the pleaded allegations and those purportedly “admitted” may prove to be very material indeed. Of course, at trial it may turn out that the Defendant’s version (as supposedly “admitted”) is correct, and that the Plaintiff’s version is – to that extent – inaccurate. But this does not justify the Defendant’s approach of “admitting” a re-drafted version of the facts pleaded in the statement of claim; on the contrary, it highlights why it is important for the Defendant to plead in a way which makes it very clear where the respective versions part company.

An example of an appropriate form of defence might be:

##. As to paragraph ## of the statement of claim, the Defendant:

(a) admits that:

(i) on or about [date], he published by means of a radio broadcast certain words;

(ii) the words so published by him referred to the Plaintiff; and

(iii) the words so published by him included, in reference to the Plaintiff, the words “lower than a snake’s duodenum”;

(b) otherwise denies the allegations of fact contained in sub-paragraph (a) thereof, on the ground that the full substance and context of the words so published was: “If [the Plaintiff] has committed the conduct alleged against him in this morning’s newspaper, he is lower than a snake’s duodenum”;

(c) denies, on the grounds set forth in sub-paragraph (d) hereof, that the words so published had or were understood to have the meanings alleged (whether in the natural and ordinary meaning of the words so published, or at all); and

(d) says that, in the natural and ordinary meaning of the words so published, they reflected on the Plaintiff if, and only if, it were first established that the Plaintiff had in fact committed the conduct alleged against him in that morning’s newspaper.13

7_04.jpg(4) The Expression “all material times”

There is no doubt that the expression “all material times” – or the preferable alternative, “all times material to this proceeding” – is very useful, especially when pleading introductory allegations which “set the scene” for the contentious facts averred at a later point in the pleading.

Introductory allegations which may usefully be prefaced by such expressions can include (depending on the details of the particular case):

  • the fact that any of the parties is an incorporated entity (eg., “At all times material to this proceeding, the First Defendant was a company duly incorporated, and capable as such of being sued in its corporate name”);
  • the existence and control of any relevant trusts (eg., “At all times material to this proceeding, the First Defendant was the trustee of a certain discretionary trust known as ‘The Xxxx Family Trust’ created by a Deed of Trust dated [date]”);
  • the relationships between the parties (eg., “At all times material to this proceeding, the Second Defendant was the sole director of the First Defendant”);
  • the nature of any business relevantly carried on by any of the parties (eg., “At all times material to this proceeding, the First Defendant, as trustee of the said trust, carried on the business of subdividing and developing land for residential occupation”);
  • the ownership of any relevant property by any of the parties (eg., “At all times material to this proceeding, the Second Defendant was the registered proprietor of the land described as ... [etc.]”);
  • any relevant legal status or qualifications attributable to any of the parties (eg., “At all times material to this proceeding, the Third Defendant was a solicitor of this Honourable Court, duly qualified and admitted to practise as such, and the holder of a current practising certificate issued by the Queensland Law Society Inc.”).

Generally speaking, these expressions are not appropriate to introduce contentious allegations. To plead a contentious allegation by reference to “all material times” often involves assuming a burden which is unnecessary, as it is only essential to plead (and ultimately to prove) that the relevant state of affairs existed at a specific point in time. And doing so is often the result of lazy or sloppy drafting, by counsel who have not bothered to think about and decide what times are “material” with respect to a particular state of affairs.

A very common example occurs in actions under Part V of the Trade Practices Act – for example, section 51AA and section 52 – where an essential ingredient of the cause of action is that relevant conduct occurred in the course of “trade or commerce”. Commonly, the pleading will allege that “At all material times the Defendant was engaged in trade or commerce”, sometimes even adding the words “within the meaning of the Trade Practices Act”. Such an averment commits the first of the “seven deadly sins”, because it really pleads a conclusion rather than material facts.

But the problems with pleading in that way do not end there. On the one hand, the burden taken on by a plaintiff in alleging that the defendant was “engaged in trade or commerce” at “all material times” is unnecessary – all that is required is that the defendant was engaged in trade or commerce at the time when the infringing conduct occurred. On the other hand, to plead that the defendant was “engaged in trade or commerce” at “all material times” may also be inadequate – the essential question is not whether the defendant was generally engaged in trade or commerce, but whether the infringing conduct occurred in the course of such trade or commerce14.

Another common example involves allegations of agency. It will be a rare case indeed where it is either necessary or appropriate to plead that, “At all material times the Second Defendant was the First Defendant’s agent”. Adding, after the words “all material times”, the further words “and for all material purposes”, merely exacerbates the problem. Again, these types of pleadings often reflect a lazy or sloppy approach, by counsel who has not taken the trouble to identify the times and purposes which are “material” to the existence of the relationship of principal and agent.

Such a form of pleading, once again, fails to take advantage of available forensic opportunities, especially under the UCPR. A second defendant who is alleged to have been the first defendant’s agent “at all material times” may properly object to that allegation as being irrelevant, or deny it as being untrue, without addressing the only point which is of any ultimate significance: namely, whether he was the first defendant’s agent at the time and for the purpose of committing a specific act or omission which forms an essential ingredient of the cause of action.

This highlights another difficulty inherent in the rote and unthinking use of the expression “all material times”. Often, through laziness or sloppiness, that expression is used to preface the averment of a state of affairs which plainly did not subsist at each and every point in time which may be material in the action generally. A few “real life” examples may serve to illustrate how this happens:

A. In a defamation action, the statement of claim pleaded that the plaintiff, “at all material times”, was a person of good fame and repute, enjoying a reputation for honesty and integrity. Of course, the gravamen of the plaintiff’s case was that publication of the defamatory matter had harmed his reputation. What he should have pleaded is that the alleged state of affairs subsisted at all material times until publication of the defamatory matter.

B. In an action for rescission of a contract for the sale of land, the statement of claim pleaded that the defendant, “at all material times”, was the registered proprietor of the subject land. What the pleading should have alleged is that the defendant was the registered proprietor at all material times until completion of the sale to the plaintiff.

C. In a suit for specific performance of a contract, the statement of claim pleaded that the defendant, “at all material times”, was a company duly incorporated. This was admitted in the defence, although a substantial plank in the defence case was that the defendant could not be bound by the contract as it had been entered into prior to the defendant’s incorporation. In this instance, it would have been appropriate to deny that the defendant was duly incorporated “at all material times”, on the ground that the defendant was not incorporated until a specified date post-dating the alleged contract.

7_05.jpg(5) Pleading Documents

Aside from negligence actions and some other torts, almost all civil litigation turns upon the contents of one or more written documents – be they contractual instruments, partnership or joint venture agreements, declarations of trust, conveyancing documents, leases, easements, written representations, libellous publications, or what have you.

In recognition of this fact, court rules generally contain helpful provisions regarding the way that written documents may be pleaded. UCPR rule 152 provides: “Unless precise words are material, a pleading may state the effect of spoken words or a document as briefly as possible without setting out all of the spoken words or document.” FCR Order 11 rule 4 provides: “Where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof.”

There are, in fact, three ways to plead the contents of a written document:

A. The first is to plead, in accordance with rule 152 or Order 11 rule 4, “the effect of the document”. For instance:

##. By a letter dated [date] from the Defendant’s solicitors to the Plaintiff’s solicitors, the Defendant agreed to extend the time for completion by 30 days, with time to remain essential.

B. The second is to set out, verbatim, the relevant part or parts of the document. For instance:

##. The said Contract of Sale provided, by clause 3 of the ‘Special Conditions’ annexed thereto, as follows:

3. This contract is subject to and conditional upon ... [etc.]

C. The third is to incorporate the whole of the document in the pleading, most conveniently by attaching it as an annexure. For instance:

 ##. On or about [date], the Defendant published or caused to be published on page 17 of the Courier-Mail newspaper of that date, an advertisement, a true copy of which is attached to this pleading and marked as ‘Annexure A’.

Despite this range of options, one still sees – with monotonous regularity – pleadings which say something like this:

##. The Plaintiff will refer to the said [document] at the trial of this action for its full terms, true meaning and effect.

Why do people waste even the infinitesimal amount of paper and ink – let alone thought and effort – required to insert such a meaningless and worthless piece of verbiage into any pleading? It does nothing. If the document is relevant, then all parties will have every right to refer to it at trial – including its “full terms, true meaning and effect” – whether or not the intention to do so is foreshadowed in a pleading. And if the document is not relevant, foreshadowing an intention to refer to it at trial will not entitle anyone to do so.

7_06.jpg(6) The Expression “repeats and relies upon”

 If there is any single expression which should never appear in any pleading, it is the expression “repeats and relies upon”. A good pleading sets out the material facts, and only the material facts. Once they have been set forth, there is no purpose in repeating them: no purpose in repeating them literally; and equally no purpose in repeating them figuratively, by asserting that one “repeats and relies upon” them.

This expression seems to have become fashionable where the pleader is attempting to set up distinct causes of action, or perhaps distinct grounds of defence, and the same material facts are relevant to more than one cause of action or one ground of defence. Thus, for instance, the same course of dealings between the parties may be relied upon as giving rise to a contractual cause of action, or alternatively a promissory estoppel. There is certainly no reason why the same material facts may not, in an appropriate case, be relied on in that way.

But it is entirely unnecessary, even in such a situation, to “repeat and rely on” pleaded allegations of material facts. It is perfectly adequate to plead, for example, that:

 ##. In the alternative, by reason of the matters pleaded in paragraphs ## to ## hereof, the Defendant is estopped and precluded from denying an obligation to ... [etc.]

Just as it is unnecessary to “repeat and rely upon” material facts set forth in the same pleading, it is also unnecessary to “repeat and rely upon” material facts set forth in an earlier pleading of the same party. For instance, one may see something like this in a plaintiff’s Reply:

##. The Plaintiff denies the allegations in paragraph ## of the defence, and repeats and relies upon paragraphs ## to ## of the statement of claim.

If a “direct explanation for the party’s belief that the allegation is untrue” is required under UCPR rule 166(4), it might be appropriate to plead:

##. In the premises pleaded in paragraphs ## to ## of the statement of claim, the Plaintiff denies the allegations in paragraph ## of the defence.

or:

##. The plaintiff denies the allegations in paragraph ## of the defence on the grounds pleaded in paragraphs ## to ## of the statement of claim.

But the expression “repeats and relies upon” has no place in any competent pleading.

7_07.jpg(7) Numbering of Paragraphs

The final point may seem trivial – almost banal – compared with those already canvassed. But in this writer’s view, anything which contributes to making a pleading more intelligible or less ambiguous, or easier to read, or which simply enhances the professional appearance of the finished product, is worthy of attention. So I take this opportunity to make five brief points.

First, it is a common enough (and entirely unobjectionable) practice to refer, within a pleading, to other numbered paragraphs of the same pleading. But it commonly happens that, during the drafting process, paragraphs get renumbered, so that internal references to numbered paragraphs become disordered. There are three ways to prevent this problem.

A. The first, and perhaps most obvious, is carefully to check the final draft before it is sent off to the instructing solicitor to be engrossed, filed and served. This may seem obvious, but my experience suggests that it is more often honoured in the breech than the observance.

B. The second is to adopt the practice, when drafting a pleading, of inserting some symbol – such as an asterisk (*) or a hash (#) – wherever there is to be a reference to another numbered paragraph. This makes it easy, with the assistance of the “search” function available in all modern word-processing systems, to find and replace such symbols once the paragraph numbering has been finalised.

C. The third is to avoid internal references to paragraph numbers altogether, by the judicious use of definitions. As a simple example, paragraph 4 of a pleading might refer to a certain property. On each subsequent occasion where it is relevant to refer to that property, it might be described as “the property mentioned in paragraph 4”. But it is equally permissible – and a lot more efficient – to indicate, where the property is first mentioned, that it is “(hereinafter called ‘the Ipswich property’)”.

Secondly, it is also very common (and also entirely unobjectionable) to divide numbered paragraphs into sub-paragraph and sub-sub-paragraphs. Indeed, this practice is now recognised in the UCPR, which provide by rule 146(1)(f) that a pleading must “be divided into consecutively numbered paragraphs and, if necessary, subparagraphs, each containing, as far as practicable, a separate allegation”.

Traditionally, paragraphs have been numbered with arabic digits, sub-paragraphs with lower-case letters in parentheses, and sub-sub-paragraphs with lower-case roman numerals (usually also in parentheses). This scheme had the advantage that it is consistent with the common practice for numbering sections, subsections and paragraphs in Acts of Parliament. In recent times, it has become increasingly common to use a digital numbering system, with paragraphs numbered 1, 2, 3; sub-paragraphs numbered 1.1, 1.2, 1.3; and sub-sub-paragraphs numbered 1.1.1, 1.1.2, 1.1.3.

Whichever system is used, one is well advised not to over-use subordinate paragraphs. As a general rule, each separate idea or concept should be the subject of a separate numbered paragraph; each separate numbered paragraph should have no more than three or four sub-paragraphs, or half a dozen at most; the same applies to sub-sub-paragraphs; and using any more than three levels of paragraph numbering (paragraphs, sub-paragraphs and sub-sub-paragraphs) should be avoided at all costs.

Of course, what I have proposed as a “general rule” is entirely arbitrary, and doubtless there are arguments which can be made for departing from this “general rule” in particular circumstances. But experience has shown that more extensive use of subordinate paragraphs just creates confusion.

This is perhaps best illustrated by a pleading which I recently saw, the first paragraph of which (changing the details to protect the guilty, but without any exaggeration) was in this form: 

1. At all material times:

(a) the Plaintiff was:

(i) a natural person;

(ii) born on [date];

(iii) a male person;

(iv) employed:

a. between [date] and [date] as a storeman and packer; and

b. between [date] and [date] as a taxi driver;

(v) unemployed between [date] and [date];

(vi) in the course of his employment:

a. as a storeman and packer, in receipt of income and allowances comprising:

i. base salary of [amount] per week;

ii. overtime of:

A. [amount] per week in the period from January to October of each year; and

B. [amount] per week in the months of November and December of each year;

b. as a taxi driver, in receipt of income averaging [amount] per week;

(vii) whilst unemployed, in receipt of unemployment benefits of [amount] per fortnight;

(viii) a married man;

(ix) the father of three children, namely:

a. x, aged 6 years;

b. y, aged 4 years; and

c. z, aged 1 year;

(x) a person whose sporting and recreational activities, prior to the accident referred to below, included:

a. scuba diving;

b. touch football; and

c. bushwalking;

(xi) since the accident referred to below:

a. unable to participate in scuba diving;

b. only able to play touch football:

i. for limited periods of time; and

ii. in a lower grade; and

c. only able to engage in bushwalking:

i. on level tracks and pathways; and

ii. for distances of not more than 5 kilometres;

(xii) [etc. etc.];

(b) the First Defendant:

(i) was a company duly incorporated;

(ii) carried on the business of operating a warehouse located at [address];

(iii) had, as its directors:

a. the Second Defendant; and

b. until [date], the Third Defendant;

(iv) had, as its shareholders:

a. NMO Pty Ltd, a company:

i. of which the Second Defendant is the sole director;

ii. of which the Second Defendant is the sole shareholder;

iii. which acts as trustee of the NMO Family Trust for the benefit of the Second Defendant’s family; and

b. PQR Pty Ltd, a company:

i. of which the Third Defendant is the sole director;

ii. of which the Third Defendant is the sole shareholder;

iii. which acts as trustee of the PQR Family Trust for the benefit of the Third Defendant’s family;

(c) the Second Defendant was:

(i) a natural person;

(ii) a director of the First Defendant as:

(a) until [date], one of two directors together with the Third Defendant; and

(b) from [date], its sole director;

(iii) the sole director of NMO Pty Ltd;

(iv) the sole shareholder in NMO Pty Ltd;

(v) a person whose family were the beneficiaries of the NMO Family Trust of which NMO Pty Ltd was the trustee;

(vi) [etc. etc.]

(d) the Third Defendant was [etc. etc.]

Thirdly, though this is a point so obvious that it should be unnecessary to state it, there is no reason to use a subordinate paragraph where there is only one subordinate paragraph. Yet this occurs with surprising frequency. For instance, a numbered paragraph might read:

##. The said contract was terminated, in that:

(a) the Defendant repudiated the contract by:

(i) a letter dated [date] from the Defendant to the Plaintiff;

(b) the Plaintiff accepted the Defendant’s said repudiation by:

(i) a letter dated [date] from the Plaintiff to the Defendant.

One can only surmise two possible explanations for such a curious form of pleading. Perhaps it is the result of counsel’s slavish adherence to a pleading precedent in another case, where there was (in each instance) more than one item of correspondence comprising the repudiation and the rescission. Or perhaps counsel drafted the “skeleton” of the pleading, leaving it for instructing solicitors to complete details which were not contained in counsel’s brief. In any event, there is no sensible reason why this paragraph should not simply read:

##. The said contract was terminated, in that:

(a) the Defendant repudiated the contract by a letter dated [date] from the Defendant to the Plaintiff; and

(b) the Plaintiff accepted the Defendant’s said repudiation by a letter dated [date] from the Plaintiff to the Defendant.

Fourthly, where the document comprising a pleading also contains a prayer for relief – for example, in a statement of claim or a counterclaim – the prayer for relief does not form part of the pleading, and should be numbered separately. If the paragraphs of the pleading are designated by arabic numerals, it is common for the paragraphs in the prayer for relief to be designated by arabic numerals in parentheses.

Fifthly, and finally, be wary of automated paragraph numbering systems available through word processing software. Like anything automated, such systems are prone to malfunctioning. They can be very convenient and useful, until the document is emailed or otherwise electronically transferred – for instance, by junior to senior counsel, or by counsel to the instructing solicitor – and is then amended on another computer with slightly different software settings. Almost invariably, this results in the paragraph numbering getting displaced and distorted.

This, at any rate, is the most generous explanation for the frequency with which one sees pleadings that have two (and sometimes more) paragraphs with the same number, or which omit certain numbers altogether. Other common discrepancies are where the numbering of sub-paragraphs continues from one numbered paragraph to the next, so that sub-paragraphs 1(a) to (f) are followed by 2(g) and 2(h), or where the entire pleading starts renumbering from an arbitrary point part way through.

As I have said, the explanation offered is the most generous one which comes to mind. A less generous critic might suggest that the problem is merely a lack of care, possibly on the part of counsel, more commonly on the part of the instructing solicitors. In any event, it is an easy problem to deal with, and one which should be addressed by everyone who is conscious, either of their duty of care to their clients, or of their image as members of a learned profession.

Anthony J H Morris QC
T.J.Ryan Chambers

 

Footnotes

  1. I suspect in Victoria, but only because that is where I first encountered it.

  2. [1997] FCA 1040

  3. [1936] 1 KB 697, 712

  4. (1985) 7 FCR 109, 112-114

  5. (1990) 92 ALR 395

  6. (1996) ATPR ¶41-522 at 42,679

  7. unreported, 12 May 1992

  8. (1985) 7 FCR 109, 111-113

  9. Goldsmith v. Sandilands, [2002] HCA 31 per Gleeson CJ at para.[2]: “The function of particulars is not to expand the issues defined by the pleadings, but ‘to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial’: Bruce v. Odhams Press Ltd, [1936] 1 KB 697 at 712-3”.

  10. see, eg., Bruce v. Odhams Press Ltd, [1936] 1 KB 697; Sammy Russo Meat Supplies Pty Ltd v. Australian Safeway Stores Pty Ltd, [1998] FCA 1192

  11. Pinson v. Lloyds and National Provincial Foreign Bank Limited, [1941] 2 KB 72 at 75; H 1976 Nominees Pty Limited v. Galli, (1979) 40 FLR 242 at 246-7; Sydney Airport Corporation Limited v. Baulderstone Hornibrook Engineering Pty Limited, [2003] NSWSC 486

  12. Saunders v. Jones, (1877) 7 Ch D 435 at 451; R v. Associated Northern Collieries, (1910) 11 CLR 738 at 740; Bruce v. Odhams Press Limited, [1936] 1 KB 697 at 712-3; McSpedden v. Harnett, (1942) 42 SR (NSW) 116 at 119; Bailey v. Federal Commissioner of Taxation, (1977) 136 CLR 214 at 219, 220, 221; Dare v. Pulham, (1982) 148 CLR 658 at 664.

  13. In Robinson v. Laws, [2001] QCA 122, the Court of Appeal noted that the pleading of alternative innuendo meanings by a defendant in a defamation action is appropriate on the footing that: “The defendant may deny the meaning alleged, and may – perhaps must under rule 166(4) of the Uniform Civil Procedure Rules – identify any different meaning said to arise, by way of explaining the denial” (per de Jersey CJ, para. [51]).

  14. see Concrete Constructions (NSW) Pty Ltd v. Nelson, (1990) 169 CLR 594


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