Pleadings and particulars

[2-4900] The relationship between pleadings and particulars

Rule 15.1 of the UCPR provides that a pleading must give such particulars as are necessary to enable the opposite party to identify the case to be met. Rule 15.9 provides that the particulars must be set out in the pleading or, if that is inconvenient, be set out in a separate document referred to in the pleading and filed with the pleading. So, in concept, particulars are part of the pleading, either physically so or by reference.

What, then, is the distinction between pleaded facts and particulars?

The basic distinction is that particulars give specificity to assertions of a more general kind made in the body of the pleading. (For example, it may be asserted that the defendant was negligent, in which case the particulars will specify the respects in which it is said that the defendant was negligent.)

In two respects, a material distinction may arise between facts asserted in the body of the pleading, on the one hand, and particulars, on the other. First, the facts asserted in the body of the pleading must be sufficient, standing alone, to make out the party’s case (whether for a remedy sought or as a factual answer in law to the previous pleading). Gaps in the pleading party’s case cannot be filled in by providing particulars: H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at [13]–[23].

Secondly, it is said that a party need not, and should not, plead to particulars: Pinson v Lloyds & National Foreign Bank Ltd [1941] 2 KB 72 at 75. (There should, however, be no occasion to do so because, where particulars are properly limited to making the pleaded facts more specific, an answer to the facts as pleaded will be an answer to the facts as particularised.)

In another and more important respect, there is no material distinction to be made between the facts asserted in the body of the pleading and such particulars as are provided. Together, the allegations of fact must be sufficient to apprise the opposite party of the case to be met: see “The purpose of pleadings and particulars” at [2-4930].

[2-4910] Application of the rules

Part 14, Div 2, rr 14.4 and 14.5 (reply and subsequent pleadings) do not apply to the Small Claims Division of the Local Court, and Div 6 (defamation) does not apply to the Local Court.

Part 15, Div 1, rr 15.7 (exemplary damages), 15.8 (aggravated damages) and 15.12–17 (personal injury cases) do not apply to the Small Claims Division of the Local Court. Rule 15.8 (aggravated damages) does not apply to the Dust Diseases Tribunal. Division 4 (defamation) does not apply to the Small Claims Division of the Local Court or to the Dust Diseases Tribunal.

[2-4920] Definition of “pleading”

The word “pleading” is defined in the Dictionary to the UCPR as including a statement of claim, defence, reply and any subsequent pleading, and as not including a summons or notice of motion.

Conformably, r 14.1 provides that Pt 14 (Pleadings) applies to proceedings commenced by statement of claim and to proceedings in which a statement of claim has (later) been filed.

[2-4930] The purpose of pleadings and particulars

The issues purpose

It is the function of pleadings to identify the issues, the resolution of which will determine the outcome of the proceedings.

The notice purpose

It is the function of pleadings, including particulars, to apprise the opposite party of the case to be met.

The second of these principles is enshrined in r 15.1, which provides that a pleading must give such particulars 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.

Authorities supporting these purposes

Not surprisingly, the following judicial statements make no distinction between the function of pleadings and function of particulars.

Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it … they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial … and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court.: Dare v Pulham (1982) 148 CLR 658 at 664.

The function of pleadings is to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.

Particulars fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds.: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219.

It is no argument that the opposite party knows the facts.

[I]t is a misapprehension to think that the only function of particulars is to reveal to a party facts of whose existence he is unaware. As I have indicated, particulars have the important function of informing a party of the nature of the case he has to meet and of limiting the issues of fact to be investigated by the court.: Bailey v Federal Commissioner of Taxation, above, at 219.

[2-4940] How pleadings establish the issues to be tried: admission, denial, non-admission and joinder of issue

The relevant rules are UCPR r 14.26 (Admission and traverse from pleadings) and r 14.27 (Joinder of issue).

Where there is a joinder of issue, that is the end of that aspect of the pleadings and an issue or issues for trial are thereby identified.

How is a joinder of issue achieved?

  • A traverse, in the meaning of the rules, is a denial (explicit or implied) or a statement of non-admission; it may be made generally and thus relate to every allegation made in the previous pleading, or it may be made in relation to any particular allegation or allegations: r 14.26(2).

  • Rule 14.20 provides that a pleading may not plead the general issue. (Under the pre-Judicature Act system of pleading, all of the facts pleaded in support of the plaintiff’s claim could be denied by pleading one of a set of formulae, compendiously referred to as “the general issue”, for example, “The defendant says it is not guilty as alleged” in the case of negligence, “The defendant says it did not promise as alleged” in the case of contract, etc.)

  • Allegations of fact are taken to be admitted unless traversed or unless a joinder of issue under r 14.27 operates as a denial (see below): r 14.26(1).

  • A joinder of issue, may be express or implied.

  • An express joinder of issue (for example, “The plaintiff joins issue on the defendant’s defence” or “The plaintiff joins issue on the defendant’s defence except for paras 1 to 5 inclusive which are admitted”) operates as a denial as to every allegation of fact in the previous pleading other than those expressly admitted: r 14.27(1) and (6).

  • There is an implied joinder of issue if there is no reply to a defence or no answer to a subsequent pleading: r 14.27(2) and (3). An implied joinder of issue operates as a denial of every allegation of fact made in the pleading to which it relates: r 14.27(5).

  • Where allegations are not admitted or are denied (whether explicitly or impliedly denied, or are taken to be denied by operation of the rules) and where any such non-admission or denial is the subject of joinder of issue (including any joinder of issue implied under the rules), allegations not admitted or denied are in issue and fall to be determined by the court.

[2-4950] Implied traverse as to damage and damages

Where a pleading alleges damage or the amount of damages, a pleading in response to that pleading is taken to traverse the allegation unless it specifically admits the allegation: r 14.26(3).

[2-4960] No joinder of issue on a statement of claim

There can be no joinder of issue, express or implied, on a statement of claim: r 14.27(4). (Accordingly, if no defence is filed, the plaintiff must prove, ex parte, the facts relied upon for the remedy that is sought.)

[2-4970] Pleader under legal disability

Subrule 14.26(4) provides that r 14.26 does not apply to a pleading by or on behalf of a party under legal incapacity. Read literally, r 14.26(4) applies to the whole of r 14.26 (which is referred to above and which includes a number of pleading rules). However, a more limited effect might have been intended, namely, to prevent an admission arising by implication by operation of subrule 14.26(1) against a person under legal incapacity.

[2-4980] Pleading of facts in short form in certain money claims

Rule 14.12(1) of the UCPR preserves the old style common money counts such as “for goods sold and delivered by the plaintiff to the defendant” and “for money lent by the plaintiff to the defendant”.

Rule 14.12(3) and (4) provides that notice to plead may be given in such cases and for what then follows.

[2-4990] Trial without further pleadings

Rule 14.2(1) of the UCPR provides that the court may order that the proceedings be tried without further pleadings if the issues between the parties can be defined without further pleadings or for any other reason. Rule 14.2(2) provides that, in such case, the court may direct the parties to prepare a statement of the issues or, failing agreement in that regard, may settle a statement itself.

A typically suitable case for the application of this rule is a proceeding involving only questions of law.

[2-5000] Pleadings for which leave is required or not required

No leave is required to commence proceedings by statement of claim or to file a defence.

In the Supreme Court and District Court, no leave is required to file a reply, but leave is required to do so in the Local Court: r 14.4(1) and (2).

In all courts, leave is required to file any pleading subsequent to a reply: r 14.5.

[2-5010] The form of pleadings, paragraphs

Pleadings must be divided into numbered paragraphs, with each matter in a separate paragraph: r 14.6.

[2-5020] Verification of pleadings

See UCPR, Pt 14, Div 4 (Verification of pleadings), rr 14.22–14.24.

[2-5030] Facts, not evidence

Rule 14.7 of the UCPR provides that a pleading must contain only a summary of the material facts relied upon, and not the evidence by which those facts are to be proved.

This means that a pleading should not specify the way the asserted facts are to be proved (such as that certain persons saw or heard certain things, unless the seeing or hearing are themselves material facts).

[2-5040] Brevity

Rule 14.8 of the UCPR provides that a pleading must be as brief as the nature of the case allows.

[2-5050] References to documents and spoken words

Rule 14.9 provides that the effect of any document or spoken words should be pleaded, not the terms of the document or spoken words unless material.

[2-5060] Matters presumed or implied and which, accordingly, need not be pleaded

Presumed facts

A fact presumed by law need not be pleaded, except as necessary to answer a specific denial: r 14.10.

Burden on opposite party

Similarly, a fact which the opposite party has the burden of disproving need not be pleaded, except as necessary to answer a specific denial: r 14.10.

Condition precedent

Rule 14.11 relates to certain conditions precedent specified in the rule. These include that something in particular has been done or has happened or exists or that the party is ready and willing to perform an obligation. The rule provides that a statement to the effect that such a specified condition has been satisfied is implied in the pleading.

[2-5070] Unliquidated damages

A pleading must not claim an amount for unliquidated damages except in relation to certain specified motor vehicle and other specified property damage claims: r 14.13.

[2-5080] Matters arising after commencement of the proceedings

Such matters may be pleaded: r 14.17.

[2-5090] Opposite party not to be taken by surprise

Rule 14.14(1) of the UCPR provides that a plaintiff must plead specifically in a statement of claim any matter that may otherwise take the defendant by surprise.

Rule 14.14(2) provides that, in a defence or subsequent pleading, a party must plead specifically any matter that might otherwise take the opposite party by surprise (r 14.14(2)(a)), or that allegedly makes any claim, defence or other case of the opposite party not maintainable (r 14.14(2)(b)), or that raises matters of fact not arising out of the original pleading (r 14.14(2)(b)).

Material facts which if established would support a statutory defence such as ss 42 or 5O of the Civil Liability Act 2002 should be pleaded: Port Stephens Council v Theodorakakis [2006] NSWCA 70 at [15]; Sydney South West Area Health Service v MD (2009) 260 ALR 702 at [20]–[23], [65].

Rules like r 14.14(2)(a) are not confined in their operation to requiring the pleading of facts that are in a strict sense material to the cause of action or defence in question: Davis v Veigel [2011] NSWCA 170 at [95]. In some circumstances, in order to avoid surprise, it may be necessary for a party in his or her pleading to “explicitly relate the facts it pleads to specified causes of action”: Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 at [21].

For statements condemning trial by ambush, see Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at [28]–[32], [40]–[46], Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 at [59]–[60], and Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 at [28]–[33].

For an example of relief in respect of the requirements of rr 14.14 and 15.1 on the grounds of privilege against self-exposure to penalties, see MacDonald v ASIC (2007) 73 NSWLR 612.

[2-5100] The Anshun principle

For a discussion of the related Anshun principle, see Ritchie’s at [14.28.20]; Thomson Reuters at [r 14.14.220]. And see Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245, Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118 and Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 91 ALJR 37; [2016] HCA 44.

[2-5110] Special rules providing that particular matters must be pleaded specifically

  • Possession of land: r 14.15

  • Contributory negligence: r 14.16

  • Claims under Property (Relationships) Act 1984: r 14.21

  • Rule 14.14(3) provides that certain particular matters must be pleaded pursuant to r 14.14(2) without limiting the general effect of the subrule. These include fraud, performance, release and statute of limitations

  • For discussion of the topics specified in r 14.14(3) and other topics within the general terms of r 14.14(2), see Ritchie’s at [14.14.5]–[14.14.10]; Thomson Reuters at [r 14.14.100]–[r 14.14.200].

[2-5120] Special rules providing that particulars of certain matters be provided

  • Behaviour in the nature of fraud: r 15.3

  • Condition of mind: r 15.4

  • Negligence and breach of statutory duty in common law claims in tort: r 15.5

  • Out of pocket expenses: r 15.6

  • Exemplary damages: r 15.7

  • Aggravated damages: r 15.8,

  • Property (Relationships) Act 1984: r 15.11

[2-5130] A point of law may be raised

Rule 14.19 of the UCPR provides that a party may raise any point of law.

The rule enables a party, in its pleading, to raise for decision whether the facts pleaded in the preceding pleading have the asserted legal effect; for example, whether the facts pleaded in a statement of claim establish a cause of action or entitle the plaintiff to the relief sought, or whether the facts asserted in a defence provide an answer in law to the plaintiff’s claim.

See “Separate determination of questions” at [2-6100].

[2-5140] “Scott schedule” in building, technical and other cases

See r 15.2.

[2-5150] The defence of tender, special rule

See r 14.25.

[2-5160] Defamation, special rules

See Pt 14, Div 6, rr 14.30–14.40; Pt 15, Div 4, rr 15.19–15.32.

[2-5170] Personal injury cases, special rules

See Pt 15, Div 2, rr 15.12–15.17.

Claims for indemnity under s 151Z(1)(a) of the Workers Compensation Act 1987 are not claims for personal injuries, however, the plaintiff insurer should provide particulars whereby the defendant would know the case it had to meet in relation to, amongst other things, the damages the worker would have obtained in the appropriate proceedings: Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144. The insurer is only obliged to provide the best particulars that it can: Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd, above. See also State of New South Wales (Ambulance Service of NSW) v McKittrick [2009] NSWCA 63.

[2-5180] Interim payments, special rule

See r 15.18.

[2-5190] Order for particulars

Generally

Rule 15.10(1) of the UCPR provides that the court may order a party to file particulars of any claim, defence or other matter stated in the party’s pleading or in any affidavit, or a statement of the nature of the case on which the party relies, or particulars relating to general or special damages if the party claims damages.

Knowledge

Rule 15.10(2) provides specifically that, if a pleading alleges that a person had knowledge of some fact, matter or thing, the court may order the pleading party to file particulars of that knowledge.

Notice

Rule 15.10(2) also provides specifically that, if a pleading alleges that a person had notice of some fact, matter or thing, the court may order the pleading party to file particulars of the notice.

[2-5200] Application for further and better particulars

The most common ground on which such applications are made is that a pleading, including such particulars as it may contain, fails to serve the notice function of pleading, that is, the need to inform the opposite party of the case to be met.

The order may provide that the specified particulars be supplied by filing an amended pleading containing the required particulars or that the particulars be supplied by letter. The former course is in strict accord with r 15.1. The alternative (by letter) is supported by the court’s power to give directions generally: CPA s 61; and for the conduct of proceedings: CPA s 58. Which course to adopt will depend on the circumstances. Where the particulars in question are extensive or fundamental to the case, it may be preferable to require an amended pleading to be filed.

The following sample orders are provided. (These can be varied to require the particulars to be supplied by letter).

[2-5210] Striking out a pleading

See “Summary disposal and strike out applications” at [2-6900].

[2-5220] Leave to amend a pleading

See “Amendment” at [2-0700].

[2-5230] Where evidence is led or sought to be led outside the case pleaded and particularised

The appropriate response depends on the circumstances.

  • The court may refuse to allow evidence to be lead outside the case pleaded and particularised, if an amendment should, in justice, not be allowed.

  • The pleadings may be amended (if appropriate, on terms as to adjournment or as to costs or otherwise), if an amendment should, in justice, be allowed.

  • Where the case has been conducted on a basis outside the pleadings and particulars, the court should decide the case as litigated.

The following judicial statements may be noted.

Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings … But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed … though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence.: Dare v Pulham (1982) 148 CLR 658 at 664.

The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286–287.

Legislation

  • Civil Liability Act 2002 ss 5O, 42

  • CPA ss 58, 61

  • Property (Relationships) Act 1984

  • Workers Compensation Act 1987 s 151Z(1)(a)

Rules

  • UCPR Pt 14, Div 2, Div 4, Div 6, 14.4–14.15, 14.17, 14.19, 14.21–14.27, 14.30–14.40, Pt 15, Div 2, Div 4, 15.1–15.32