Pleading in Reply what should be in the Statement of Claim

In the recent case of Canavan v Shred-X Pty Ltd & Anor [2023] QDC 37 the pleading of facts in a statement of claim or a reply was brought into focus.

The case involved the plaintiff’s termination of employment and the initial matter raised in the statement of claim for determination was an allegation that a reasonable notice of termination should be implied as a term of the employment contract.  The employment contract also provided for an express termination period. 

The defendants argued that in circumstances where the employment contract expressly so provided, that a term as to the notice period for termination cannot be implied.[1] 

The plaintiff argued a number of grounds in response including that there is question of construction whether the parties intended the express provision of the contract relating to termination to be comprehensive, and that reference to the minimum notice period in the Fair Work Act 2009 (Cth) does not necessarily exclude a term of reasonable notice.

Somewhat unusually, the hearing of this case took place only 10 days after the filing of the defence and before the last day as provided by the UCPR for the filing of a reply. As Judge Byrne KC pointed out, “the argument was heard before the pleadings had closed.”[2]

A reply was subsequently filed by the plaintiff on the last day allowed under the UCPR for one to be filed.[3]  The reply asserted that certain conversations between the plaintiff and the second defendant (the general manager of the first defendant) “during which the plaintiff was assured of many more years of employment than in fact eventuated.  It is asserted that the plaintiff expressed reluctance to take up employment with the first defendant unless, in effect, he was assured of that extended period of employment.”[4]

Further written submissions were accepted after the reply was filed.[5]  At the hearing the plaintiff advised that “matters relevant to the availability of an implied term of reasonable notice would be contained in the reply.”[6]  His Honour asked if the hearing should be adjourned after the last day for the filing of the reply and whilst the plaintiff did not oppose that course, the defendants did and the application was not so adjourned[7].

After the reply was filed the defendants’ solicitors contacted his Honour’s Associate “indicating that the parties were prepared to make submissions as to whether the reply should be considered in the application and, if so, the effect it had on the outcome”.[8]

The defendants contended that the reply should not be taken into account in the application as it was not read at the time of the hearing and the plaintiff did not apply to adjourn the hearing in order to allow it to be considered.[9]

Judge Byrne KC accepted that some of the matters raised in the reply should have been pleaded in the statement of claim,[10] and said as follows:[11]

“While there have been instances where the Reply has been considered as part of the scope of the matters in contest, each of the examples put before me by the plaintiff has been in a different context. In Orchid Avenue Pty Ltd v Parniczky & Anor8 Burns J was considering the availability of granting judgment in default of the defendant’s appearance at trial pursuant to r. 476 of the UCPR. Whereas in Morrison v Australian Postal Corporation, 9 McGill DCJ, sitting on appeal from the Magistrates Court, was considering a complaint about the sufficiency of the pleadings to sustain the judgment under appeal in circumstances where there had not been any application below to strike out the pleading in the SOC. His Honour found that the pleading of matters in the Reply that should have been in the SOC was an irregularity rather than rendering the proceeding invalid. He did not endorse the practice and specifically referred to the availability of a power to strike out the offending pleading.”

Judge Byrne KC said further that as the pleadings presently stood there was no requirement for the defendants to respond to the reply, which was undesirable.[12]

Although litigation can be fast-moving and material facts may come to light after the filing of initial pleadings, this decision highlights the importance of consideration to be given by a plaintiff as to whether matters should rightly be pleaded in a statement of claim (or an amended statement of claim) or, possibly – a reply.  That will not only ensure that the necessary facts are put in issue, but will also hopefully avoid potential strikeout applications. The course adopted in any case is obviously fact sensitive.

[1] Byrne v Australian Airlines Ltd (1995) 185 CLR 410.

[2] At [17].

[3] Ibid, with reference to rule 169 UCPR.

[4] At [18].

[5] At [19].

[6] Ibid.

[7] Ibid.

[8] At [19].

[9] At [20].

[10] At [25].

[11] At [26].

[12] At [28].