Effective Pleading – Avoid the Pig

The point:

The point of this article is not to descend to a learned treatise as to compliance with the Uniform Civil Procedure Rules 1999 in drafting pleadings.     Nor is it to point up a pleader’s ethical obligation in such important task.

Rather, the point is to address the techniques which counsel ought deploy so to render a pleading UCPR compliant, and also convey your party’s case comprehensively and attractively  to the opponent and to the court.

Merits, clarity and issues:

But why mention of “pigs” in the above title?  It arises because of a porcine metaphor frequented by the Supreme Court in recent times.

I hope my “rules” below do not end up being characterised as the “pig rules”, but if that serves as a reminder to the profession then that is no bad thing.
The focus of the pleader should always be upon the merits, clarity and the identification of issues.

As to the merits, in Morrison v Hudson [2006] 2 QdR 465, Keane JA (as Keane J of the High Court then was) wrote at [30]:

The applicant’s prospects of success … are very poor indeed.  As Kent J of the United States District Court said in Bradshaw v Unity Marine Corporation Inc 147 F.Supp.2d 668 (S.D.Tex. 2001) at 171:

“… at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.”

As to clarity, in Pinehurst v Coeur De Lion Investments Pty Ltd [2012] QSC 314, Martin J wrote at [29]:

The first defence is a very inadequate pleading. It is the product of a confused approach which might once have passed muster, but no longer. The exercise advanced by [the defendant] — of having to dig through the various parts of the pleading in an effort to prop up a denial — is inconsistent with the pleadings regime imposed by the UCPR. Neither the opposing party nor the  court should have to wade through a series of unconnected assertions searching for the issues. To paraphrase an illuminating statement made elsewhere judges are not like pigs, hunting for truffles in pleadings:  United States of America v Dunkel 927 F.2d 955 (7th Cir. 1991), 956.

Finally, as to clear identification of issues, almost a century ago the High Court, in Gould v Mount Oxide Mine Ltd (1916) 22 CLR 490 at 517, reminded the profession:

Undoubtedly, as a general rule of fair play, and one resting on the fundamental principles that no man ought be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of a party whose averments they are.  That is their function. Their function is discharged when the case is presented with reasonable clearness.  Any want of clearness can be cured by amendment or particulars.

With the above matters in mind, and through the focus of the UCPR and good sense, I turn to the practical rules that ought guide in effective pleading.

The rules:

The 17 rules of pleading are these:

1.  Never draft a pleading without first obtaining and considering all relevant documents, statements of witnesses and instructions. If a defendant, seek an extension or file a holding defence. All this avoids the problems of admission withdrawal and the disadvantages of amendment (tactically and as to costs).

2.  Pleading without evidence (albeit on instructions) is a dangerous practice. What may seem a powerful case will be exposed if there is little or nothing to back it up.

3.  Before drafting, have a case plan in place, by reference to the facts and authorities.  Even short of advising on prospects, one has to know the factual and legal fabric of the case to be pleaded.

4.  The pleading ought tell your party’s “story”.  The opposing party and judge ought be left in no doubt as to your case (hopefully it’s strengths!)  and the issues for determination.

5.  Tell such story from your party’s perspective, not from the perspective set by the opposing party in their correspondence or prior pleading.  A powerful pleading may move an opposing party to issue concession or compromise.

6.  A pleader is obliged by the UCPR to explain, if necessary by reference to the evidence, any denial or non-admission.  In the absence of same an admission of the relevant material fact will be deemed.   UCPR r 166;  Cape York Airlines Pty Ltd v QBE Insurance (Aust) Ltd [2009] 1 QdR 116 at [28]-[29]; but in relation to penalty privilege issues see Anderson v ASIC [2012] QCA 301 at [23], [27];  as to teasing out allegations of fact from mixed allegations of law and fact and pleading thereto see Bindaree Beef Pty Ltd v Raymon Pty Ltd [2006] NSWCA 35.

7.  Ensure your pleading is self-contained, in particular on important denials eg, “the defendant denies the allegation in paragraph 6 on the basis that, in the defendant’s belief, the allegation  that the defendant breached clause 6 of the agreement is untrue because, and the defendant says …”.  This will save the court the need to (and irritation of) a jump between pleadings to understand your case.

8.  Ensure the pleading is complete with material facts.  For example, it is not good enough merely to plea “the defendant knew, or ought to have known X” or “the defendant’s conduct in terminating the agreement under clause X was unreasonable” or “the defendant’s conduct was misleading or deceptive”.  You must plead all material facts, including those from which inferences ought be drawn to found such (or like) pleaded allegations:  UCPR r 150 (2);  Dominus Pty Ltd v Daydream Island Resort Investments Pty Ltd [2003] QSC [44] at [64].

9.  Never plead “particulars”, only material facts.  An opponent need not plead to the former, but is obliged to plead to the latter:  Ballesteros v Chidlow (No 2) [2005] QSC 285 at [21] applying Turnover v Bulletin Newspaper Pty Ltd (1974) 131 CLR 60 at 80.

10. If in doubt as to “surprise”, plead the issue of fact or law in question, with all supporting material facts:  UCPR r 1(c), r 150(4)(c).

11.  Plead damages (except general damages) in detail mathematically, and by reference to the germane material facts eg, not “the plaintiff claims $X for economic loss for breach of contract”:  UCPR r 155.

12.  If an erroneous admission has been made, intended or deemed, promptly notify and prosecute an application to withdraw same.  Be in a position to explain the genesis of such  admission and the merits behind the need to withdraw it: Pinehurst v Coeur De Lion Investments Pty Ltd [2012] QSC 314 at [38], [39].

13.  Identify deemed admissions in an opposing party’s pleading early and expressly hold it to the same.

14.  Remember a non-admission may be perceived by an opponent, and the court, as  a “coward’s castle”, or indolence.  In any event non-admitting carries an ongoing obligation prior to and  beyond pleading, to the end of trial, to continue to make reasonable enquiry.

15.  Remember also a responsive pleading (defence or reply), under the UCPR, is founded on the knowledge or belief of the responding party, both personal and after reasonable enquiry.   

16.  When you, as pleader, have reached what you consider to be your final draft, put it aside.  Come back to it a day later.  With a good night sleep and some distraction in between, re-reading may reveal anomalies or even spawn new ideas.  Either may be difficult to rectify upon later consideration.  

17.  Pleading is collaborative.  Counsel ought invite the instructing solicitor, before filing same, to check it for accuracy.  Have the client do likewise.  But the solicitor ought be expressly advised no amendment thereto may be effected without counsel’s consent;  his or her name is on the pleading.

Conclusion:

Both compliance with the UCPR and good sense is required in pleading.  Probably the touchstone entailed in the exercise is this:  If you can’t sensibly and clearly plead your party’s case, then there is every likelihood your party does not have a case to argue.

R J Douglas SC